author: CRAVEN, Circuit Judge:

text:
    MONONGAHELA POWER COMPANY, an Ohio corporation, Appellant, v. LOCAL NO. 2332 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO-CLC, et al., Appellees.
    No. 73-1680.
    United States Court of Appeals, Fourth Circuit.
    Argued July 17, 1973.
    Decided Oct. 2, 1973.

      Leonard L. Seheinholtz, Pittsburgh, Pa. (Reed, Smith, Shaw & MeClay, Pittsburgh, Pa., and Richard H. Talbott, Jr., Elkins, W. Va., on brief), for appellant.
    Stanley M. Hostler, Charleston, W. Va. (Hostler, Logsdon & Shinaberry, Thomas P. Maroney and Maroney & McHugh, Charleston, W.Va., on brief), for appel-lees.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   CRAVEN, Circuit Judge:

The plaintiff Monongahela Power Company brought this action below to enjoin a work stoppage allegedly in violation of a collective bargaining agreement with Local No. 2332, International Brotherhood of Electrical Workers, and to order arbitration. The district court, acting under the grant of jurisdiction contained in Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, held inapplicable the Boys Markets exception to the anti-injunction mandate of the Norris-LaGuardia Act, 29 U.S.C. § 104, and denied injunctive relief. We reverse.

Monongahela is a public utility which provides electric service to most of northern and central West Virginia. Defendant Local 2332 is the collective bargaining representative for all hourly-paid employees of the Company’s Panhandle Division located in Weirton, West Virginia. In early May 1973, members of Local 2357 went on strike at the Company’s Clarksburg Division. Pickets from Local 2357 were subsequently established at the Panhandle Division in Weirton to publicize the strike then being conducted in Clarksburg. In order to show sympathy and solidarity with members of the Clarksburg Local, the employees of the Panhandle Division represented by the defendant Local 2332 refused to cross the picket line, and a work stoppage followed. William Wil-harm, manager of the Panhandle Division, made repeated requests for the Panhandle employees to return to work, and he asked both the Local and the Cincinnati Regional Office of the IBEW to disavow the work stoppage and to direct its members to return to work and process any grievance they might have through the applicable steps of the grievance procedure contained in the collective bargaining agreement. No action to end the strike was taken by the Panhandle employees, the Local, or the Regional Office, and the work stoppage continued.

The collective bargaining agreement between Local 2332 and the Company became effective on March 1, 1972, and continues in force until July 1, 1974. It provides in part as follows:

ARTICLE IX
Adjustment of Grievance
Section 1. Any dispute between the Company or employees covered by this Agreement with respect to the interpretation, application, or claimed violation of any express provision of this Agreement shall constitute a grievance which shall be settled in accordance with the provisions of this Article.
ARTICLE X
No Strike — No Lockout
Section 1. During the term of this Agreement, there shall be no strike, work stoppage, slowdown or any other interference with or impeding of work.
Section 2. No employee shall participate in any such strike, work stoppage, slowdown or any other interference with or impeding of work and the Union will not authorize, instigate, aid or condone any such activity. Upon notification by the Company that a violation of this Article exists or is threatened, the Union shall immediately take all steps within its power to prevent or terminate any action or conduct in violation of this Article. [Emphasis added.]

The Company brought this action in district court seeking both injunctive relief and damages on the grounds that the refusal to cross the picket line and the resultant work stoppage were in direct violation of Article X of the collective bargaining agreement. The defendant Local contended that the refusal to cross the picket line was an individual decision of each employee, neither authorized nor sanctioned by the Local, and that the employees were engaging in activity which was protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, and which did not come within the scope of Boys Markets. Following a hearing, the district judge orally denied the Company’s application for a preliminary injunction, and an order denying both preliminary and permanent injunctive relief was thereafter entered.

A brief history and analysis of federal labor policy is required in order to determine whether the district court erred in concluding that Boys Markets was not applicable to the facts of this case and that the court was therefore barred by che Norris-LaGuardia Act from granting an injunction against the work stoppage. Congress passed the Norris-LaGuardia Act in 1932 as a reaction to the widespread misuse by federal courts of injunctive relief in labor-management controversies. Section 4 of the Act prohibits federal courts from issuing temporary or permanent injunctions in most labor disputes, and strict procedural safeguards are provided for those cases where injunctions are appropriate. 29 U.S.C. §§ 107-112.

Against this clear federal policy of nonintervention in labor disputes, however, emerged an “equally strong policy to encourage the settlement of labor disputes through enforcement of compulsory arbitration agreements.” Avco Corp. v. Local No. 787, 459 F.2d 968, 970 (3d Cir. 1972). Section 301 of the Labor Management Relations Act, passed in 1947 to supplement existing state jurisdiction over labor contract matters, granted federal courts jurisdiction over “suits for violation of contracts between an employer and a labor organization.” Although initially considered only a grant of jurisdiction, Section 801 was later interpreted to allow federal courts to order specific performance to enforce arbitration provisions in collective bargaining agreements. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

In Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court failed to reconcile these two competing federal labor policies — the prohibition against antistrike injunctions and the preference for compulsory arbitration to maintain industrial peace. Sinclair involved a strike in direct violation of a no-strike provision in a collective bargaining agreement. The Court affirmed the district court’s refusal to enjoin the strike by adopting a literal reading of Section 4 of Norris-LaGuardia, 29 U.S.C. § 104, and holding that the Act’s anti-injunction provision was not limited by Section 301 of the LMRA, i. e., federal courts do not have jurisdiction to issue injunctions against violations of a no-strike clause if the labor dispute is one encompassed by Section 4. The effect of Sinclair was to create a new dilemma: if its holding were limited to federal courts, and injunctive relief left available in state courts, the declared need for uniformity among state and federal courts with respect to enforcement of labor contracts would be destroyed; if Sinclair were extended to state courts, it would have to be done despite “explicit evidence that Congress expressly intended not to encroach upon the existing jurisdiction of the state courts.” Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S. Ct. 519, 523, 7 L.Ed.2d 483 (1962).

The Supreme Court decided Boys Markets in order to solve the dilemma created by Sinclair and to avoid possible “wholesale dislocation in the allocation of judicial business between state and federal courts” that might be caused by disparity of remedy available in courts of concurrent jurisdiction. 398 U.S. at 246-247, 90 S.Ct. at 1590. The Court there chose to reject the literal interpretation of Norris-LaGuardia announced in Sinclair and to adopt a strong policy favoring the settlement of labor disputes through enforcement of compulsory arbitration. By way of explanation of its decision to overrule Sinclair in favor of enforcing arbitration agreements, the Court stated:

The Sinclair decision ... seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. We conclude, therefore, that the unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes, that the core purpose of the Norris-LaGuardia Act is not sacrificed by the limited use of equitable remedies to further this important policy, and consequently that the Norris-LaGuardia Act does not bar the granting of injunctive relief in the circumstances of the instant case.

398 U.S. at 252-253, 90 S.Ct. at 1593.

The anti-injunction provision of Norris-LaGuardia still retained much of its vitality after Boys Markets, however, as the Court specifically limited its holding —that injunctive relief against labor disputes may be available — to a narrow fact situation.

We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief — principles that we now adopt:
“A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity — whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.”

398 U.S. at 253-254, 90 S.Ct. at 1594. (Emphasis in original.)

We believe the facts of the instant case clearly bring it within the narrow Boys Markets exception. The collective bargaining agreement between the Company and the Local is written in extremely broad and encompassing language. Article X of the agreement prohibits employees from participating in any work stoppage or interference with or impeding of work, and it forbids the union from authorizing or condoning such activity. Further, the union has the affirmative duty to take all steps necessary to terminate this conduct upon notification that a violation of the agreement is threatened. Article IX provides for the mandatory adjustment of any unresolved grievance which involves “the interpretation, application, or claimed violation of any express provision of this Agreement.”

The wording of a pai’ticular arbitration agreement is an important factor in determining questions of coverage. United Textile Workers v. Newberry Mills, Inc., 315 F.2d 217, 218-219 (4th Cir. 1963). The Supreme Court has stated that courts should liberally construe such agreements, resolve all doubt in favor of arbitration, and order arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Applying this standard to the arbitration agreement before us, we think the dispute as to whether the refusal to cross the picket line and the resulting work stoppage violated Article X was clearly subject to mandatory adjustment under Article IX.

We also note that it is immaterial to the Company’s duty to arbitrate that the grievance procedure is employee oriented. The Company is bound to arbitrate if the Local elects to pursue that . remedy, and the Local is bound to arbitrate a grievance rather than to resort to a work stoppage. Avco, supra, 459 F.2d at 972. The claimed violation of the bargaining agreement is, therefore, “a grievance which both parties are contractually bound to arbitrate.”

The final element necessary to bring the case within the doctrine of Boys Markets is whether an injunction is warranted under ordinary principles of equity. The district judge below specifically found that a breach of the no-strike clause had occurred and would continue, that the work stoppage had caused and would continue to cause irreparable injury, and that the Company had no adequate remedy at law. ' He then concluded that “under general equitable principles, the injunction would and should issue as a matter of course.”

While the district court made these findings which we think sufficient to require the application of Boys Markets, the district judge refused to enjoin the work stoppage, apparently in reliance upon NLRB v. Union Carbide Corp., 440 F.2d 54 (4th Cir. 1971). The holding we enunciated in Union Carbide was that the action of two non-striking employees, who refused as a matter of principle to cross a picket line maintained by striking employees of a common employer, was protected activity within the meaning of Section 7 of the National Labor Relations Act and that the employer’s action in discharging these employees violated Section 8(a)(1) of the Act. There, however, the discharged employees were not covered by a collective bargaining agreement and, consequently, were not subject to the provisions of a no-strike clause. While there exists a statutory right of employees to refuse to cross a picket line of another union, 29 U.S.C. § 158(b), this right may be waived, and was waived here, by the action of their union in agreeing to a no-strike clause. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 80, 73 S.Ct. 519, 97 L.Ed. 832 (1953). We believe, therefore, that Union Carbide is distinguishable from the case before us.

As their final contention, the defendant Local contends that each employee individually decided not to cross the picket line, and that these refusals were not sanctioned by the Local. We think this argument is contrary to the evidence and merits little discussion. The Local had a duty under the bargaining agreement to do all within its power to terminate any conduct by its members which violated the agreement. Yet, neither the Local nor its Regional Office took any action whatsoever to induce the employees to cross the picket line, even after repeated requests by the Company to disavow the work stoppage. We have no difficulty in concluding, therefore, that the Local did in fact condone the employees’ refusal to cross the picket line.

The case will be remanded to the district court for the issuance of an appropriate injunction compelling arbitration and preventing work stoppage pending arbitration. Pending action by the district court, our Rule 8 injunction will be continued.

Reversed and remanded.

      . Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed. 2d 199 (1970).

      . 29 U.S.C. § 157 provides:
      Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.

      . By stipulation of the parties, it was agreed that the hearing on the preliminary injunction would constitute the final hearing on the merits with respect to the Company’s application for injunctive relief. Subsequently, we granted the Company’s motion under Appellate Buie 8 for an injunction pending appeal, and accelerated the appeal.

      . The district judge concluded :
      [Ujnder the prescriptions that are presented to the Court under the Norris-LaGuardia Act, we find ourselves in the position where injunctive relief cannot be granted at this juncture and under these facts.
      The Court does not believe that the limited rulings and teachings of the Boys Market case are such that would permit us, under the facts of this case, to open up the prohibited injunctive avenue to stop the work stoppage that is here presented.

      . Vladeck, Boys Markets and National Labor Policy, 24 Vand.L.Rev. 93, 94 (1970) ; see Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1594 (1970).

      . 29 U.S.C. § 104 provides in part:
      No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts :
      (a) Ceasing or refusing to perform any work or to remain in any relation of employment ....

      . 29 U.S.C. § 185 provides in part:
      (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

      . See Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955)

      . The Supreme Court in 1960 further reinforced the federal policy favoring arbitration as the best way to settle labor disputes in the Steelworkers Trilogy. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) ; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). See Vla-deck, Boys Markets and National Labor Policy, 24 Vand.L.Rev. 93, 95 (1970) ; Note, Labor Injunctions, Boys Markets, and the Presumption of Arbitrability, 85 Harv.L.Rev. 636, 637-38 (1972).

      . Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 203, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962).

      . Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).

      . See The Supreme Court, 1969 Term, 84 Harv.L.Rev. 32, 193 (1970).

      . Although we believe the presumption of arbitrability is the correct standard to be applied, see, e. g., Avco Corp. v. Local No. 787, 459 F.2d 968, 973 (3d Cir. 1972) ; General Cable Corp. v. Local No. 1798, 333 F. Supp. 331, 334 (W.D.Tenn.1970), we believe that the issue in this case is so clearly arbitrable that we would reach the same result even if we applied the inverse presumption. See Note, Labor Injunctions, Boys Markets, and the Presumption of Arbitrability, 85 Harv.L.Kev. 636 (1972).

      . The specific requirements of Boys Markets have been listed as follows:
      In an attempt to insure that the abuses which the Norris-LaGuardia Act was designed to correct would not reappear, the Court established guidelines for the district courts to follow when granting in-junctive relief: (1) the collective bargaining agreement must contain a mandatory adjustment or arbitration procedure; (2) the court must first determine that the strike is over a grievance which both parties are contractually bound to arbitrate; (3) the court must order the employer to arbitrate as a condition of his obtaining an injunction against the strike. Beyond these specific guidelines, the court, according to Boys Markets, must consider whether issuance of an injunction would be warranted under ordinary principles of equity.
      Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1597 (1970).


source: Caselaw Access Project

author: BUTZNER, Circuit Judge:

license: Public Domain

text:
    In re Robert Reginald KILGO.

      No. 73-2015.
    United States Court of Appeals, Fourth Circuit.
    Argued Aug. 30, 1973.
    Decided Sept. 6, 1973.

      Henry L. Belsky, Baltimore, Md., (London, Potler & Belsky, Baltimore, Md., on brief) for Robert Reginald Kil-go.
    Charles L. Weintraub, Sp. Atty., U. S. Dept, of Justice (George Beall, U. S. Atty., D. Md., on brief) for the U. S.
    Before BUTZNER, RUSSELL, and WIDENER, Circuit Judges.
   BUTZNER, Circuit Judge:

In this appeal, Robert R. Kilgo challenges certain aspects of the procedure followed by the district court in adjudicating him to be in civil contempt under the General Immunity Act of 1970 [18 U.S.C. §§ 6001-6005], After Kilgo refused to answer questions before a grand jury investigating gambling, the district court, on application of the government, granted him immunity and ordered him to testify. Because Kilgo persisted in his refusal, the court adjudged him to be in contempt and ordered his confinement pursuant to 28 U.S.C. § 1826(a). On appeal, Kilgo asserts that the immunity order, on which the contempt citation rests, is invalid for the following reasons: the government failed to disclose why his testimony was necessary to its investigation of organized crime; neither he nor the court was apprised of the basis of the United States attorney’s conclusion that his testimony was necessary to the public interest; he was entitled to be told the nature of the inquiry before the grand jury in more detail than by a mere reference to the statutes pertaining to gambling; he was entitled to counsel and to be advised of his right to counsel at the immunity hearing; and 18 U.S.C. § 6003 is unconstitutional. Finding no merit in any of these assignments of error, we affirm.

I

In 1970, Congress enacted a general immunity statute which has been codified as 18 U.S.C. §§ 6001-6005. Section 6003, dealing with court and grand jury proceedings, provides that a district court shall issue an order requiring a witness to testify before a grand jury upon application of the United States attorney made with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, when, in the judgment of the United States attorney, the testimony may be necessary to the public interest and the witness has refused, or is likely to refuse to testify on the basis of his privilege against self-incrimination. Section 6002 grants the witness use immunity — that is, neither his testimony, nor any information directly or indirectly derived from his testimony, may be used against him in any criminal case other than in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

In the application for an order granting Kilgo immunity and compelling him to testify before the grand jury, the United States attorney alleged that in his judgment the testimony of the witness was necessary to the public interest, that Kilgo — after having been advised of his privilege against self-incrimination — had refused to testify on the basis of this privilege, and that the application was made with the approval of the Assistant Attorney General in charge of the criminal division of the Department of Justice.

A

Kilgo’s contention that the government was obligated to show that his testimony was necessary to the government’s investigation of organized crime warrants only brief comment. Although Sections 6001-6005 were enacted as a part of Title II of the Organized Crime Control Act of 1970, the provisions of the Act dealing with immunity are not limited to investigations of organized crime. Title II was enacted to provide a general immunity statute, and it replaced numerous disparate immunity laws scattered throughout the United States Code.

Section 6003 refers to “any individual who has been . . . called to testify . '. .at any proceeding before . . . a grand jury . . . .” [emphasis added] There is no clause in the statute requiring the government to show that the grand jury’s inquiry is related to organized crime or that the witness’s testimony is necessary for an investigation of this limited scope. Nor is there any justification in the legislative history for restricting the statute. Indeed, the legislative history is to the contrary; the, statute was intended to be available for the investigation of any crimes for which designated prosecuting authorities certified its utility. We hold, therefore, that the district court did not err by entering the immunity order without requiring the government to show that Kilgo’s testimony was necessary to an investigation of organized crime.

B

In its immunity order, the district court found that in the judgment of the United States attorney Kilgo’s testimony was necessary to the public interest. Kilgo claims that the court erred because the government offered no evidence pertaining to the public interest.

No case interpreting the public interest provision of the 1970 Act has been called to our attention. However, cases construing analogous requirements in earlier immunity statutes establish that the district court is not empowered to review the United States attorney’s judgment that the testimony of the witness is necessary to the public interest. The leading case is Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), which construed the Immunity Act of 1954 [18 U.S.C. § 3486] 9dealing with grand jury inquiries involving national security. That Act also limited grants of immunity to witnesses whose testimony, in the judgment of the United States attorney, was necessary to the public interest. The Court, recognizing the potential constitutional question that would arise if the judiciary reviewed the merits of immunity, construed the statute to withhold from the district court “any discretion to deny the order on the ground that the public interest does not warrant it.” 350 U.S. at 432, 76 S.Ct. at 503. It held that the function of the district court was limited to ascertaining whether the application complied with the statutory requirement — that is, had the United States attorney certified that in his judgment the testimony of the witness was in the public interest. Accord: In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631, 635 (1962). A similar interpretation has been given to the public interest provision of 18 U.S.C. § 2514 [Omnibus Crime Control and Safe Streets Act of 1968]. In re Shead, 302 F.Supp. 569 (N.D.Cal.1969), aff’d sub nom Carter v. United States, 417 F.2d 384 (9th Cir. 1969), cert, denied, 399 U. S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970). Correspondingly, § 6005 of the 1970 Act precludes a court from reviewing the propriety of congressional authorization of immunity. In re Application of United States Senate Select Committee on Presidential Campaign Activities, Misc. No. 70-73 (D.D.C., June 12, 1973).

The drafters of the 1970 Act left no doubt that the construction given to the public interest provision in previous immunity acts was to be applied to § 6003, and the legislative history confirms the limited role of the court Because the Act does not authorize the district .court to review the United States attorney’s judgment that the testimony of the witness may be necessary to the public interest, no evidence pertaining to this judgment need be offered. We hold, therefore, that the court did not err in accepting without proof the government’s allegation relating to the public interest.

C

The application for immunity alleges that Kilgo refused to answer questions concerning violations of 18 U.S.C. §§ 371, 1952, and 1955. It did not in any other way identify the inquiry of the grand jury. At the immunity hearing the government offered no other proof or explanation of the scope of the grand jury’s investigation. Kilgo complains that the bare statutory reference to the subject matter of the grand jury’s investigation is insufficient to advise him of the type of activity the government is inquiring about and involves him in “a guessing game as to whether or not to answer questions.”

Kilgo’s contention fails to distinguish between use immunity, which is the basic concept of the 1970 Act, and transactional immunity, which was afforded by older statutes. Use immunity prohibits the witness’s compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness. See Murphy v. Waterfront Commission of New York, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964). On the other hand, transactional immunity accords immunity to the witness from prosecution for the offense to which his compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

The 1970 Act differs from the older transactional immunity statutes because it does not create a defense to specific criminal charges. Instead, the Act provides a ground for suppressing the direct or indirect use of compelled evidence in any criminal prosecution save those mentioned in the statute, but prosecution may still go forward on legitimate independent evidence. Thus, § 6002 affords protection coextensive with the scope of the fifth amendment privilege against compulsory self-incrimination. After a witness has been granted use immunity under § 6002, both the witness and the prosecutor are left in virtually the same position regarding future prosecutions of the witness as if the witness had been permitted to stand upon his claim of the fifth amendment. Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

A number of cases dealing with transactional immunity have required the government to show in at least some detail the subject matter of the grand jury investigation. E.g., Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); In re Vericker, 446 F.2d 244 (2d Cir. 1971); and In re Bart, 113 U.S.App.D. C. 54, 304 F.2d 631 (1962). In this respect, these cases furnish no precedent for construing the 1970 Act because they interpreted statutes which authorized transactional immunity for the investigation of only certain specified offenses. Although these statutes also granted a species of use immunity, the courts, quite naturally, were concerned with whether the investigation and the consequent transactional immunity conformed to the restrictions imposed by the Congress. Under transactional immunity statutes a problem of either unduly restricting evidence or of imper-missibly extending immunity could arise when an investigation expanded to include subject matter for which the witness might not be expressly immunized by the terms of the grant. For this reason, courts conducted hearings to determine whether the investigation, including the questions asked the witness, were confined to the bounds drawn by the statute. This problem, which is inherent in all transactional immunity statutes, has been eliminated from the 1970 Act, and Kilgo’s reliance on cases interpreting transactional immunity statutes is misplaced.

We conclude, therefore, that when a witness has been granted the use immunity afforded by § 6002, the scope of the grand jury’s investigation is immaterial insofar as the witness’s fifth amendment privilege is concerned. Accordingly, the district court properly ruled that the government need not amplify its allegation concerning the scope of the gambling investigation.

D

The statutory procedure for compelling testimony under the 1970 Act does not strip a witness of an opportunity to present his reasons for refusing to testify. Title III of the Organized Crime Control Act of 1970 [28 U.S.C. § 1826] authorizes commitment for contempt only if the witness “refuses without just cause shown to comply with an order of the court to testify . . ,” See e. g., Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972).

At the contempt hearing, the grand jury reporter read the transcript of the proceedings in which Kilgo refused to answer specific questions, and the court directed him to answer the questions. Again he appeared before the grand jury and refused to testify. The court then adjudged him in contempt. Apart from his claim of fifth amendment privilege, the only reasons Kilgo offered for his silence were an unwillingness to implicate other persons and fear for his own safety. Quite properly, the district court ruled that these reasons did not provide just cause for refusal to testify. Hale v. Henkel, 201 U. S. 43, 69, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Piemonte v. United States, 367 U.S. 556, 559 n.2, 81 S.Ct. 1720, 6 L.Ed. 2d 1028 (1961).

II

When the government moved that Kilgo be adjudged in civil contempt, the district court, acting on his representation that he could not afford an attorney, arranged for the appointment of counsel and scheduled the contempt hearing for a later date. Kilgo contends that appointment of counsel at this stage of the proceedings was insufficient; that he had a right to counsel at the hearing on the government’s application for an order granting immunity and compelling him to testify.

There can be no doubt that Kilgo was entitled to counsel at the civil contempt hearing. United States v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972); cf. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, because of the difference between immunity and contempt hearings, a claim similar to Kilgo’s was rejected in United States v. Handler, 476 F.2d 709 (2d Cir. 1973).

Here, as in Handler, Kilgo has demonstrated no prejudice by the absence of counsel at the immunity hearing. Indeed, the court’s duties in entering the immunity order were largely ministerial. Cf. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Moreover, at the contempt hearing, when Kilgo was represented, he was afforded an opportunity to raise every objection that he could have raised at the immunity hearing. We find, therefore, no deprivation of due process or of the sixth amendment right to counsel. We do not suggest, however, that in every instance a witness is not entitled to representation at a hearing on the government’s application for immunity. Exceptional circumstances, not found in this case, may dictate the need for counsel.

Ill

Finally, Kilgo charges that § 6003 is unconstitutional because witnesses and defendants are not authorized to grant immunity and to compel testimony from other witnesses on the same basis as the government. Kilgo alleges no unconstitutional application of the statute; his attack is purely facial.

In Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), Mr. Justice Powell reviewed antecedents of § 6003 that span more than two centuries of Anglo-American law. Traditionally, grants of immunity — an aspect of prosecutorial discretion — have been the sole prerogative of government. Even so, the 1970 Act is framed so that immunity will be conferred sparingly. The public suffers when a criminal is not prosecuted, and this detriment must be weighed carefully against the public benefit that will accrue from the information which immunity can compel. The balancing of these interests has not been left to persons unanswerable to the public. In addition to requiring a certification of the public interest, § 6003 imposes ultimate responsibility on the Attorney General. Immunity requires his approval, or the approval of his deputy or an assistant attorney general — officials appointed by the President with the advice and consent of the Senate. Sound public policy is-served by this designation of authority and responsibility. See II Working Papers 1433 (1970). A person suspected of crime should not be empowered to give his confederates an immunity bath.

The Constitution reflects the historical precedents and the practical reasons for confining the power to grant immunity to the prosecutorial officers of the government. The sixth amendment assures an accused “compulsory process for obtaining witnesses in his favor.” But the authors of the Bill of Rights did not deem it essential to enhance this right by empowering the accused to confer immunity, and nowhere in the Constitution do we find any justification for conditioning the government’s ability to grant immunity on a corresponding grant to private individuals.

We hold, therefore, that Kilgo’s attack on the constitutionality of § 6003 is without merit.

Affirmed.

      . Title 28 U.S.C. § 1826. “Recalcitrant witnesses
      (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—
      (1) the court proceeding, or
      (2) the term of the grand jury, including extensions,
      before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.”
      Subsection (b) limits bail pending appeal and directs that the appeal be expedited.

      . Title 18 U.S.C. § 6003. “Court and grand jury proceedings
      (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the reguest of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
      (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any desig-ignated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment-—
      (1) the testimony or other information from such individual may be necessary to the public interest; and
      (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.”

      . Title 18 U.S.C. § 6002. “Immunity generally.
      Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      '(1) a court or grand jury of the United States,
      (2) an agency of the United States, or
      (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
      and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”

      . The assistant attorney general in charge of the criminal division of the Department of Justice is specifically authorized to approve applications for immunity under 18 U.S.C. § 6003 by 28 C.F.R. § 0.175 (1970).

      . Pub.L. 91-452, Title II, § 201(a), Oct. 15, 1970, 84 Stat. 926 (1970).

      . II Working Papers, National Commission on Reform of Federal Criminal Laws 1444 (1970) (hereafter cited as Working Papers), lists 53 statutes governing immunity prior to the enactment of the 1970 Act.

      . II Working Papers 1405 (1970).

      . Title 18 U.S.C. § 3480 was repealed by the 1970 Immunity Act, Pub.L. 91-452, Title II, 228(a), Oct. 15, 1970, 84 Stat. 930.

      . Title 18 U.S.C. § 2514 was repealed, effective Dec. 15, 1974, by the 1970 Immunity Act, Pub.L. 91-452, Title II, §§ 227(a), 260, Oct. 15, 1970, 84 Stat. 930, 931.

      . The drafters of the Act, when discussing the utility of a court order and the constitutionality of the procedure to be followed in conferring immunity, said:
      “A court order requirement will be harmless, however, if Federal district courts continue to view their role here as being solely ministerial — i. e., service as a recording agency. This approach was outlined in the leading case of Ullmann v. United States, 350 U.S. 422 [76 S.Ct. 497, 100 L.Ed. 511] (1956), sustaining the constitutionality of the initial court order requirement statute, 18 U.S.C. § 3486(c), concerning grand jury investigation and national security.” II AVorldng Papers 1435 (1970).

      . “The court’s role in granting the order is merely to find the facts on which the order is predicated.” H.Rep.No.91-1549, 91st Cong., 2d Sess., U.S.Cong. & Admin.News, pp. 4007, 4018 (1970).

      . Section 1955 prohibits certain gambling activities ; § 1952 pertains to travel and transportation in aid of racketeering enterprises; and § 371 is the general conspiracy statute.

      . For example, in In re Vericker, 446 F.2d 244, 247 (2d Cir. 1971), the court said, “In any event the decisions are virtually unanimous in holding or assuming that the witness may challenge whether the subject matter of a grand jury investigation is consonant with the statutory authorization for the grant of immunity and that, upon such a challenge, the Government must make at least a modest showing that it is.” This case, however, interpreted § 2514, which authorized transactional immunity for witnesses in cases involving specified serious crimes. Subsequently, the court suggested that Vericlcer does not apply to proceedings under the 1970 Act. See United States v. Handler, 476 F.2d 709, 714 (2d Cir. 1973) (dictum).

      . B. g., Bursey v. United States, 466 F.2d 1059, 1073 (9th Cir. 1972).

      . In a leading case dealing with transactional immunity under 18 U.S.C. § 3486, the court said, “But there is a more serious limitation on the application of the statute. Testimony can be compelled and immunity can be given only in a proceeding [involving national security].” In re Bart, 113 U.S.App. D.C. 54, 304 F.2d 631, 635 (1962). The 1970 Act, as we have noted, contained no similar limitation.

      . See n. 1, supra.

      . At its September 1973 meeting, the Judicial Conference of the United States approved a guideline for use in implementing the Criminal Justice Act, as follows:
      “When a judge appoints counsel for a witness before a grand jury under the terms of the Criminal Justice Act in cases in which the witness faces loss of liberty, such appointment shall be deemed to be an appointment under the general terms of the Act rather than under the terms of subsection (g) and that ordinarily such appointment should be considered to be an appointment in a misdemeanor case.”


author: McCREE, Circuit Judge.

text:
    Gary WHITSEL, Plaintiff-Appellant, v. SOUTHEAST LOCAL SCHOOL DISTRICT et al., Defendants-Appellees.
    No. 72-1665.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 30, 1972.
    Decided Sept. 25, 1973.

      Richard P. McLaughlin, McLaughlin, DiBlasio & Harshman, Youngstown, Ohio, for plaintiff-appellant.
    R. J. Kane, Portage County Pros. Atty., Ralph J. Stemberger, Asst. Prosecutor, Ravenna, Ohio, Joseph G. Schneider, Cleveland, Ohio, Bernard J. Wilkes Youngstown, Ohio, for defendants-appel-lees.
    Before CELEBREZZE, McCREE, and LIVELY, Circuit Judges.
   McCREE, Circuit Judge.

Plaintiff, a continuing-contract teacher in the Southeast Local School District of Ravenna, Ohio, appeals from a judgment determining that he was not discharged because of the exercise of activity protected by the First Amendment and that due process was not offended by the dismissal procedures employed. We affirm.

Gary Whitsel, the possessor of a Bachelor of Science degree and a Master of Arts degree in Sociology and Anthropology from Kent State University, had taught for seven years in the public schools of Ohio prior to his discharge in 1970. The last five were spent in the defendant school system, and in the last two of these years he taught history and a “Great Issues” course at Southeast High School. He was awarded a continuing contract on April 27, 1970, a few weeks before the events that precipitated this litigation.

On Monday, May 4, 1970, Whitsel was the supervisor of a Kent State student teacher named Goldstein, who requested permission to leave Southeast High School before completing his teaching assignments in order to attend an antiwar rally at the Kent State campus. Whitsel granted permission, and Gold-stein left without informing the principal or assistant principal and obtaining their approval, as required by established procedures. As events transpired, this was the day the Ohio National Guard was summoned to quell the demonstration on the Kent State campus against the extension of the Vietnam War into Cambodia, and four students were shot to death. Goldstein and another student teacher became tear gas casualties shortly after their arrival on the campus and they retired to a dormitory without observing much of the day’s activities.

The two student teachers were summarily dismissed by defendant school board the next day for failure to have secured the approval of their Kent State coordinators and the Southeast principal before leaving the high school. Gold-stein informed Whitsel of this action by telephone the same evening.

On May 6, the next day, about forty students gathered at the principal’s office as soon as school opened and sought an explanation for the dismissal of the two popular student teachers. The assistant principal directed the group to the gymnasium to await the principal’s arrival. When the principal’s explanation failed to satisfy them, the students, their numbers now augmented to about four hundred, demanded the presence and explanation of the superintendent of schools. Whitsel left his class to investigate the commotion he had heard and, after advising Goldstein of the student demonstration, joined the assembly in the gymnasium.

The superintendent explained why Goldstein had been dismissed and instructed the students to return to their classes because the assembly was unauthorized. The students did not obey and asked to hear from Whitsel, who addressed them and said that he had given Goldstein permission to leave. He also suggested that there were political implications in the dismissal and that he was familiar with a Supreme Court case reported in a National Education Association periodical that caused him to believe that Goldstein and the other student teacher might have “a case for the American Civil Liberties Union or the Ohio Civil Rights Union.” Goldstein, who returned to the school without first reporting to the office as required by regulation, entered the gymnasium to student applause while Whitsel was speaking but departed when he learned that the Sheriff had been called to help terminate the assembly. Other teachers and administrators then spoke to the students, who remained in the gymnasium until the school authorities closed the school for the day and sent them home. The Southeast Local schools remained closed from May 6, 1970, until May 12.

On May 11, the school board convened a private meeting shortly before a special meeting with all teachers of the district. The board . members discussed “. . . what was going to be said that afternoon, and what steps we were going to take to make sure there was order, and we could finish the year cooperatively and smoothly.” Three teachers who were present at the May 5 assemblage in the gymnasium were identified as coconspirators responsible for the episode: Mr. Galmish, Miss Sterrett, and Mr. Whitsel. Subsequently, the teachers in attendance at the special meeting were ■advised of the decision to charge these three with responsibility for the unauthorized assembly.

After a month-long investigation, Whitsel was notified by the board of education on June 18, 1970, of its intention to terminate his contract on the grounds of “ . . . gross inefficiency and willful and persistent violations of reasonable regulations of the board of education and other good and just cause.” He was suspended on September 2, 1970, and was accorded a hearing pursuant to the statutory provision for contract termination. Ohio Rev.Code § 3319.16. Whitsel did not demand that the hearing be conducted by a referee, and on January 11, 1971, the board terminated his contract for “persistent and willful violations of reasonable regulations of the Southeast Board of Education and other good and just cause.”

Whitsel filed a timely appeal in the Court of Common Pleas of Portage County, but, inexplicably, he later withdrew the suit and initiated this action under 28 U.S.C. §§ 1331, 1343(3), 1343(4), and 42 U.S.C. § 1983. His complaint asserted that the incident of May 6 merely afforded defendants a pretext for terminating his contract and that the true reason was that he had expressed controversial and unpopular opinions and ideas on political, social, and religious subjects. He averred that his termination for these reasons violated his rights to freedom of speech, assembly, association, and religion as guaranteed by the First and Fourteenth Amendments. He also asserted that he had been denied procedural due process in several respects because, inter alia, the notice of the charge against him was inadequate, the findings of wrongdoing were vague and imprecise, and the hearing was unfair because the board was both accuser and trier of fact. Finally, he claimed that he was denied equal protection of the laws because the board had not taken similar disciplinary action against other teachers who participated in the May 6 assembly.

After a non jury trial on the merits, the district court dismissed the complaint. The court determined that “[t]here is a total absence of evidence bearing upon any personal beliefs, attitudes and religious views of the plaintiff and their acceptance or non-acceptance in the community as a whole, or his activity and participation in the local teachers’ association.” The court also found that there was evidence supporting the board’s dismissal order and that there was no denial of procedural due process. And, it determined that board action against Miss Sterrett, another teacher who participated in the May 6 assembly, and her subsequent resignation refuted the claim of discrimination asserted to constitute a denial of equal protection of the laws.

At the outset, we observe, as did the district court, that an action under the civil rights statutes is not a plenary review of a challenged state administrative procedure. The Ohio statutes afforded Whitsel an appeal to the Common Pleas Court of Portage County, and that court has jurisdiction to review the administrative transcript, to hold additional hearings, to take other evidence, and to grant such relief as may be proper. Whitsel initiated such an action but, for reasons obscure to us, abandoned it for the more restricted procedures afforded him here. Also, for reasons we are unable to comprehend, as the district court observed, “[a]t the outset of the trial of this cause, plaintiff voluntarily limited the issues to those arising from the events of May 4, 5 and 6, 1970.” Accordingly, appellant introduced no evidence of his classroom expression or advocacy of ideas or opinions incompatible with official Southeast Local School District views. The parties stipulated at trial that Whitsel “. is an efficient and capable teacher . whose teaching record prior to May 6, 1970, discloses no evidence that would support the charges contained in the June 18, 1970 notice of intention to terminate his contract.” And the transcript of the dismissal hearing before the board does not contain any evidence of appellant’s classroom performance.

Accordingly, we focus, as did the district court, on Whitsel’s May 6 activities to determine whether his dismissal was for conduct protected by the First Amendment. He spoke to the assembled students after the principal and superintendent had vainly ordered them to return to their classes. He did not urge them to obey the directions of his superiors. Instead, he told them that there might be political overtones to Gold-stein’s dismissal and that it might be a proper concern of the American Civil Liberties Union and the Ohio Civil Rights Union. His remarks encouraged disobedience to the directions given to the students by his superiors to return to classes. As a consequence, he was terminated not only for what he said but also for what he did not say. A regulation required him to assist in quelling a student school disruption. Although he disclaimed specific knowledge of the regulation, it had been adopted in January 1970 and had been posted on the teachers’ bulletin board. The notice of intention to terminate his contract charged him with violation of this regulation and the board found him guilty of this infraction. The fact that he made statements that by themselves, in a different context, might have constitutional protection does not insulate him from sanctions for noncompliance with a board regulation.

And, quite apart from the regulation, the statements Whitsel voiced are outside the protection of the First Amendment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1967), upon which appellant relies, distinguished a teacher’s writing of a letter to the editor from statements made by a teacher that “. . . either impeded the teacher’s proper performance of his daily duties in the classroom or . interfered with the regular operation of the schools generally.” 391 U.S. at 572, 88 S.Ct. at 1737. See Gieringer v. Center School District No. 58, 477 F.2d 1164, 1167 (8th Cir. 1973); see also Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1968). Here, appellant’s remarks were not made in his capacity as a concerned citizen but in the capacity of a school teacher during school hours on school property. Also, they were not made during an authorized assembly where the expression of ideas on issues that permitted different views was appropriate. Instead, he spoke at an unauthorized assembly of students on school property after his principal and superintendent had declared the meeting unlawful and urged the insubordinate students to abandon the proscribed gathering and return to classes. His words in this factual context impliedly countermanded the directions of his superiors and, thus construed, went beyond the mere advocacy of ideas and counselled a course of action. And the course of action impliedly counselled was diametrically opposed to the one he should have urged in obedience to the school regulation that he was required to implement and to the action called for by his superiors. Cf. Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973).

We determine that the record supports the holding of the district court that, under these circumstances, Whitsel was not terminated for the advocacy of ideas but for insubordination. Whether the sanction of termination was too severe is a question not properly before us. The statutes of the State of Ohio gave appellant a forum in which to litigate that question as well as other questions concerning the commitment of any infraction and the propriety of any sanction. Whitsel initially pursued that course but later abandoned it. We cannot substitute our judgment for that of the school board so long as the board did not infringe any of appellant’s constitutionally protected rights.

We recognize that whenever a violation of First Amendment rights is alleged, the asserted reasons for dismissal must be carefully examined to see if they are mere pretexts for reasons prohibited by the Constitution. However, by stipulating not to consider his preMay 6 conduct, appellant effectively foreclosed such an inquiry. And, as we have held, a balance must be struck between a claim of First Amendment protection and the need for orderly administration of a school system. Limiting our inquiry to the May 1970 events, we cannot say on this record that there was not lawful, adequate cause for Whitsel’s dismissal for violation of a regulation of the board.

Appellant’s claim of denial of procedural due process requires less extensive discussion. Whitsel is correct in his contention that his continuing contract could not have been terminated without a hearing in which he would be informed of the grounds for dismissal and be given an opportunity to challenge their sufficiency. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). The pertinent Ohio statute specifies the grounds for termination of a continuing contract, requires written notice and time to prepare a defense, and provides the option of requesting a referee to conduct the hearing instead of the school board, a stenographic record, the right of confrontation, the right to counsel, and the right to subpoena witnesses. It also provides for plenary review of an order of termination in the state courts. Tested by every standard ever enunciated, these rights constitute procedural due process in a contract termination proceeding. See Perry v. Sindermann, supra.

We also determine that appellant’s claim that he was denied equal protection of the laws because other teachers who spoke at the assembly were not disciplined was properly decided by the district court. Miss Sterrett and Mr. Galmish, both of whom spoke in implied contradiction of the order to the students to return to class, were the objects of disciplinary procedures but resigned before final action was taken. We therefore find no substance to the claim of invidiously selective prosecution.

There are disquieting overtones to this case. The atmosphere of Southeast High School appears frighteningly oppressive and the board appears excessively authoritarian and vindictive. However, the appropriateness of the policies and practices of the board is not before us. We are restricted to the issues within our jurisdiction as framed by the parties and to the evidence in the record.

The judgment of the district court is affirmed.

      . The full notice read as follows:
      NOTICE OF INTENTION TO CONSIDER TERMINATION OF CONTRACT
      Board of Education of Southeast Local School District Ravenna, Ohio June 18, 1970
      To Mr. Gary Whitsel
      7774 Newton Falls Road Ravenna, Ohio
      This is to advise you that it is the intention of the board of education to consider the termination of your current continuing contract on the grounds of gross inefficiency and willful and persistent violations of reasonable regulations of the board of education and other good and just cause.
      Such ground for termination of your contract is based on the following conduct on your part, in the matter and on the occasions, herein set forth in detail: On May 6, 1970 you were directly insubordinate to the superintendent of schools and in violation of the board adopted policy against student school disruptions passed January 12, 1970.
      On the day of the school disruption, after Superintendent R. E. Nace had announced that the students should choose a small committee to discuss their problems and the rest return to class, you (Mr. Gary Whitsel) immediately proceeded to speak to the students saying that you had contacted the American Civil Liberties Union and that the student teachers were within their rights, just as the students were within their rights, to be questioning at this time. Both parts of the previous statement served to further inflame the situation since; (1) the disturbance was over the disciplining of the student teachers and (2) telling the students they were within their rights to be there questioning was in direct contrast to, and insubordinate to, the immediate previous remarks of the Superintendent, Mr. R. E. Nace.
      Your inability to keep your students in the classroom during this disturbance further indicates your inefficiency in handling school discipline. This inefficiency had been discussed with you on a number of occasions by your superiors and, in fact, led to a probationary one year contract for the 1969-70 school year. In addition, on a number of occasions during your teaching experiences at Southeast Schools it was necessary for the administration to remind you that remarks against the government and government policies should not be made in a manner that promoted your own personal political attitudes. There are strong indications that these words of caution were not followed and that, in fact, you permitted a student teacher to flagrantly violate this administrative and board request. Your past record of involvement in events of the nature herein described is a strong indication of your unwillingness to conform to administrative and board’s requests. Attached, hereto, please find a copy of the board adopted policy passed January 12, 1970.
      /s/ THELMA M. LEE Thelma M. Lee, Clerk Southeast Board of Education

      . The statute provides :
      § 3319.16 Termination of contract by board of education.

      The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the grounds for such consideration. Such board shall not proceed with formal action to terminate the contract until after the tenth day after receipt of such notice by the teacher. Within ten days after receipt of such notice from the clerk of the board, the teacher may file with the clerk a written demand for a hearing before the board or before a referee, and the board shall set a time for the hearing which shall be within thirty days from the date of receipt of the written demand, and the clerk shall give the teacher at least twenty days’ notice in writing of the time and place of such hearing. If a referee is demanded by either the teacher or board, the clerk shall also give twenty days’ notice to the superintendent of public instruction. No hearing shall be held during the summer vacation without the teacher’s consent. Such hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a referee appointed pursuant to section 3319.161 [3319.16.1] of the Revised Code, if demanded; otherwise, it shall be conducted by a majority of the members of the board and shall be confined to the grounds given for such termination. The board shall provide for a complete stenographic record of the proceedings, a copy of such record to be furnished to the teacher. The board may suspend a teacher pending final action to terminate his contract if, in its judgment, the character of the charges warrants such action.
      Both parties may be present at such hearing, be represented by counsel, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings, and require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. In case of the failure of any person to comply with a subpoena, a common pleas judge of the county in which the person resides, upon application of any interested party, shall compel attendance of the person by attachment proceedings as for contempt. Any member of the board or the referee may administer oaths to witnesses. After a hearing by a referee, the referee shall file his report within ten days after the termination of the hearing. After consideration of the referee’s report, the board by a majority vote may accept or reject the referee’s recommendation on the termination of the teacher’s contract. After a hearing by the board, the board by majority vote may enter its determination upon its minutes. Any order of termination of a contract shall state the grounds for termination. If the decision, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes, and if the teacher has suffered any loss of salary by reason of being suspended, he shall be paid his full salary for the period of such suspension.
      Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original action in said court and shall be commenced by the filing of a petition against such board, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board shall immediately transmit to the clerk of said court for filing a transcript of the original papers filed with the board, a certified copy of the minutes of the board into which the termination finding was entered, and a certified transcript of all evidence adduced at the hearing or hearings before such board or a certified transcript of all evidence adduced at the hearing or hearings before the referee, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. • The court shall examine the transcript and record of the hearing and shall hold such additional hearings as it deems advisable, at which it may consider other evidence in addition to such transcript and record.
      Upon final hearing, the court shall grant or deny the relief prayed for in the petition as may be proper in accordance with the evidence adduced in the hearing. Such an action is a special proceeding within the purview of section 2505.02 of the Revised Code and either the teacher or the board may appeal therefrom.

        In any court action the board may utilize the services of the prosecuting attorney or city solicitor as authorized by section 3313.35 of the Revised Code, or may employ other legal counsel.

      . The referee provided under Ohio Rev.Code § 3319.16 (see note 2, supra) is appointed according to the procedure set out in Ohio Rev.Code § 3319.16.1:
      For the purpose of providing referees for the hearings required by section 3319.16 of the Revised Code, the superintendent of public instruction shall compile a list of resident electors from names that he shall solicit annually from the state bar association.
      Upon receipt of notice that a referee has been demanded by a teacher or by a board of education, the superintendent of public instruction shall immediately designate three persons from such list, from whom the referee to hear the matter shall be chosen, and he shall immediately notify the designees, the teacher, and the board of the school district involved. If within five days of receipt of the notice, the teacher and board are unable to select a mutually agreeable designee to serve as referee, the superintendent of public instruction shall appoint one of the three designees to serve as referee. The appointment of the referee shall be entered in the minutes of the board. The referee appointed shall be paid his usual and customary fee for attending the hearing which- shall be paid from the school district general fund upon vouchers approved by the superintendent of public instruction and presented to' the clerk of the district. No referee shall be a member of, an employee of, or teacher employed by the board of education nor related to any such person by consanguinity or marriage. No person shall be appointed to hear more than two contract termination cases in any school year.

      . See note 2 supra.

      . See note 2 supra.

      . The regulation provided:
      STUDENT SCHOOL DISRUPTION POLICY — The Southeast School Board is opposed to loss of scheduled school time resulting from student participation in politically oriented activities or other activities which result in violation of public school attendance laws in the State of Ohio.
      The disruption of classes by student participants in politically oriented activities or any activity that is not sanctioned by the proper school authorities is an infringement upon the rights of non-participants. This interference may create disciplinary problems or may interfere with others’ performance of their school work.
      The Board of Education authorizes the acting supervisor of the building to take whatever steps necessary to maintain control of the building and provide for the safety of the students.
      In any incident where this may occur disciplinary action will be administered to the participants by the school authorities.

      . See note 2 supra.


author: TUTTLE, Circuit Judge:

text:
    George K. WARD, Plaintiff-Appellant, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants-Appellees.
    No. 72-2569.
    United States Court of Appeals, Ninth Circuit.
    Sept. 18, 1973.
    Michael G. W. Lee (argued), Joseph Morozumi, Oakland, Cal., for plaintiff-appellant.
    John D. Link, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for defendants-appellees.
    Before TUTTLE TRASK and GOODWIN, Circuit Judges.

       Of the Fifth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   TUTTLE, Circuit Judge:

Appellant George Ward appeals from an order of the district court denying his petition for writ of habeas corpus and request for declaratory judgment, injunctive relief, and mandamus on the ground that the Coast Guard wrongfully denied his application for discharge from the service as a conscientious objector. We reverse and remand with directions that the district court grant Ward’s prayer for habeas corpus relief.

I.

Ward enlisted in the United States Coast Guard on May 16, 1969. He filed an application for conscientious objector discharge on September 8, 1971 pursuant to Commandant Instruction 1900.2 with his commanding officer. Ward’s application stated, in part:

“Life is sacred, and it is much more valuable than anything that wars have caused people to die for. In fact life is the only thing that a human being has which has true value.
“. . . I do not say that I have always practiced my beliefs perfectly, everyone has moral lapses, but the military service has taken my ability to follow my conscience out of my hands. The ability to control my physical acts (even those of a personal nature) has been given to someone who does not have my conscience, and he has actually been given the authority to try to change my conscience.
“However, it was not until the fall of 1967, my senior year of college at the height of the controversy over the Vietnam War, that I came to a full realization that there had never been and there never could be such a thing as a ‘just’ war ....
“In May of 1969 when I received my draft notice and, subsequently, enlisted in the Coast Guard, my beliefs had not developed to the state where I considered participation in a military organization, in any capacity, as a contribution to this country’s ability to wage war. When I was working for the Department of the Navy as a civilian, I did not see my work there as contributing to the ravaging of an innocent country and the murder of its population. However, I could not now go back to that job.
“ . . .At that time I objected to war only to the extent that I could not personally take an active part in killing another human being. But now I realize that I must take some of the responsibility for the senseless murder, even if it is not my bullets that are doing the killing.
“However, I was able to enlist in the Coast Guard, and I thought that duty in the Coast Guard would not conflict with my conscience.
“At that time I thought the Coast Guard to be a military organization in name only. I knew that the Coast Guard had military uniforms and was considered an armed service, but I still considered it an alternate service whose functions were primarily civil in spite of outward appearances. I thought that I could fulfill my obligation to serve my country without participating in war, but now I feel that by participating in any military organization I am performing a severe disservice to both my country and to mankind. . . . But as time progressed I became more-and more disgusted with the military system as a way of life and with myself for giving tacit consent and support to this country’s warmaking inclinations.
“For the past year I’ve been doing a lot of talking to veterans of Vietnam and a little corresponding with men serving duty in Vietnam. I have talked with Vietnam veterans at airports and bus terminals, and I have written to men whose letters I’ve seen in G.I. newspapers. These correspondents and conversations, my conversations with men in my unit, and my experience in the service have solidified my religious opposition to war and have radicalized my political beliefs to the extent that I can no longer satisfy my conscience by telling myself that I do not participate directly in war. My life is becoming more miserable every day because it has become impossible to make my job compatible with my conscience, and the fact that I will soon be supervising the loading of ammunition for Vietnam will, I am afraid, bring this conflict of job and conscience to a head.”

In an addendum to his application Ward stated:

“Both the psychiatrist and my commanding officers have recommended that I be granted non-combatant status instead of a discharge. I have asked for a discharge because, as I have stated I find participation in a military organization in any capacity contradictory to my conscience. Granted, part of the Coast Guard’s mission is humanitarian, but, nonetheless, Coast Guardsmen are trained to kill human beings at the firing range, and we are disciplined to unquestionably obey any order from a superior without any regard to our own individual consciences. . . . Admittedly, the Coast Guard performs some very necessary humanitarian services which save rather than destroy life, but it is inconsistent and unnecessary for these services to be performed by a military organization, and I don’t think it is possible to find a job within the military that I could perform with a guarantee that I would never be asked to kill another human being.”

In addition to his own statement, Ward filed five letters attesting to his beliefs from the clergy and friends.

Ward was interviewed by LCDR Richard E. MacCullagh, a military chaplain, on October 12, 1971 concerning his conscientious objector application. The chaplain reported, “Within the limits of his philosophy he is sincere. My personal opinion is that his objection is more philosophical than religious.”

On October 13, 1971 Ward was interviewed by a military medical officer. The doctor stated: “In recent times, this man has crystallized his ideas which make active participation in the military difficult for him. . . . There is no doubt in my mind that this man is sincere in his beliefs.” He concluded by recommending that Ward be granted a non-combatant conscientious objector status.

Subsequently, Ward’s commanding officer, E. G. O’Keefe USCG Port Safety Station, Concord, California, recommended that Ward be considered for non-combatant conscientious objector status. O’Keefe stated in his letter that Ward was sincere in his beliefs, but that since he had entered into a contract with the Coast Guard, the contract should be honored by both parties. For that reason, he suggested non-combatant duties rather than discharge.

A hearing on Ward’s application for discharge for conscientious objection to service was held on December 16, 1971 by Officer LCDR Floyd W. White, Jr. The report filed by White concluded:

“While I am convinced that Petty Officer WARD is conscientiously opposed to any war for any reason, based on déeply held moral convictions ; I have had some difficulty trying to pin down exactly when these beliefs fully developed. The following factors suggest that there may have been no substantial change in belief from that held prior to his Coast Guard enlistment:
“(a) That Petty Officer WARD had stopped attending organized religious services approximately four years prior to Coast Guard enlistment, and still does not attend them.
“(b) That Petty Officer WARD had completed his university education, and was approximately 22 years old at the time of his enlistment.
“(c) That Petty Officer WARD has espoused the doctrine of individualism in religious belief since his youth.
“(d) That Petty Officer WARD states in his application that he came to a realization as early as 1967 that there could never be a just war.
“(e) That Petty Officer WARD, by his own admission, joined the Coast Guard to avoid the draft.
“I have further considered the following factors as tending to show that Petty Officer WARD’S beliefs have undergone a substantial change subsequent to enlistment in the Coast Guard:
“(a) That, Petty Officer WARD, by his own admission, joined the Coast Guard to avoid the draft (I feel that this cuts both ways).
“(b) That Petty Officer WARD applied for OCS while in recruit training.
“(c) That Petty Officer WARD finished second in his class at Quartermaster school and was honor graduate at Signalman school.
“(d) That Petty Officer WARD has a very substantial portion of his military obligation already completed.
“(e) That Petty Officer WARD has not been a serious disciplinary problem up to this point.
“(f) That Petty Officer WARD did not try to fabricate a specific event to base his ‘crystallization of belief’ on.
“On full consideration of all the factors mentioned above, and on the record and hearing material in general; realizing that the applicant has the burden of persuasion in this matter; I have been unable to conclude that there has been any substantial change in the applicant’s belief following his enlistment in the Coast Guard. I, therefore, feel compelled under present criteria, to recommend that Petty Officer WARD’S request for discharge be disapproved. I have been sufficiently bothered by this recommendation, however, so as to cause me to set forth the above factors for your independent evaluation of when Petty Officer WARD’S present beliefs may have fully materialized. As Petty Officer WARD submitted his application as a request for discharge, under current DOD instructions, I am unable to recommend his assignment to non-combatant duties.”

This recommendation was based on Commandant Instruction 1900.2, which in part provides that conscientious objector beliefs which were not claimed prior to entering the Coast Guard cannot form the basis for a discharge as an in-service conscientious objector.

Ward’s application was subsequently reviewed by his acting commander, S. K. Frick, who without interviewing Ward personally concurred in the hearing officer’s report. In addition, Frick stated, “While the applicant finds continued service in the Coast Guard objectionable to his conscience because it indirectly supports the waging of war, this objection emanates more from an inability to adjust and accept the military system in general rather than from such a change in or crystallization of his religion, moral or ethical beliefs which could qualify him for discharge as a conscientious objector.”

In response to a letter from Ward’s attorney concerning the final disposition of Ward’s conscientious objector application, the Coast Guard Commander, H. H. Kothe, replied:

“Petty Officer WARD’S application was denied because the preponderance of the evidence shows that his beliefs and convictions were formulated and held before he enlisted in the Coast Guard and thus he was ineligible for discharge as a conscientious objector.”

The evidence relied on by the commander included the above quoted portion of the hearing officer’s report, a letter from Mr. E. P. Deckart, and the concurrence of Frick in the hearing officer’s report and the additional reason of Frick quoted above.

On April 28, 1972 Ward filed an action for declaratory relief, injunction, mandamus, and habeas corpus with the district court. The district court on July 19, 1972, after conducting an in-chambers conference on the petition, denied Ward’s action for relief.

II.

Federal courts have a narrow range of review in conscientious objector claims of in-service personnel. The scope of review is limited to ascertaining whether there is any basis in fact for the finding that an individual has not presented a valid conscientious objector claim. Negre v. Larsen, 418 F. 2d 908 (9th Cir. 1969), aff’d sub nom., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969). From our review of the record, we conclude that there was no basis in fact for the Coast Guard’s finding that Ward held beliefs that constituted conscientious objector status prior to his enlistment.

Unlike most conscientious objector cases, the sincerity of the claimant in objecting, on religious grounds, to participation in war in any form is not at issue. The Coast Guard is not challenging Ward’s sincerity of belief nor that his beliefs are those of a bona fide conscientious objector. See Polsky v. Weth-erill, 455 F.2d 960 (10th Cir. 1972); Ames v. Laird, 450 F.2d 314, 315 (9th Cir. 1971). The record clearly reveals that the Coast Guard has continually concluded that Ward’s beliefs qualify him for conscientious objector status. In fact, the present assertion by the Coast Guard is that Ward’s valid conscientious objector beliefs were formulated prior to his time of enlistment and therefore make him ineligible for discharge on conscientious objector grounds. Consequently, the issue to be determined is whether there was any basis in fact for the Coast Guard’s finding that Ward’s convictions crystallized prior to enlistment and thereby under present case law and applicable Coast Guard regulations cannot form the basis for an in-service conscientious objector claim.

Before turning to review the basis in fact for the Coast Guard’s denial of Ward’s application, the possibility that an incorrect burden of proof was applied by the Coast Guard must be examined. The hearing officer stated and the government in its brief before the district court and this Court allege that Ward has the burden of proof in demonstrating that he did not hold conscientious objector beliefs prior to enlistment. This is incorrect. The law is clear that once an applicant has presented a prima facie showing of conscientious objection to war in any form, the burden of rebuttal shifts to the military service. Silverthorne v. Laird, 460 F.2d 1175, 1179 (5th Cir. 1972); Maynard v. United States, 409 F.2d 505 (9th Cir.), cert, denied, 396 U.S. 834, 90 S.Ct. 91, 24 L.Ed.2d 85 (1969). Ward fully evidenced his objection to war and the Coast Guard admits and does not challenge his sincerity. Therefore, it is the Coast Guard which has the burden of proving that Ward held his conscientious objector views prior to enlistment.

For two reasons the proper course is not a remand for application of the correct legal standard. First, even though the Coast Guard asserted that Ward had the burden, the Coast Guard unsuccessfully shouldered this burden of proof by enumerating the facts they thought indicated Ward’s objection was fixed prior to enlistment. Second, a careful examination of the record (see discussion infra) indicates no basis in fact under which the Coast Guard could have rebutted Ward’s prima facie case. Cf. Dietrich v. Tarleton, 473 F.2d 177, 179-180 (D.C.Cir. 1972) (“While appellee was entitled to a writ, we do not think he was entitled to an order requiring immediate release. This is appropriate in some cases, as when a court is convinced from the record that there is no substantial possibility in law of an ultimate disposition other than outright release.”).

The question is whether Ward’s application demonstrates a “late crystallization” of his conscientious objection after enlistment rather than just a “late filing” of conscientious objector beliefs. The correct legal standard for application to an in-service claim of conscientious objection is that the “objection itself — the objection to participation in war in any form — must become fixed only after entry” into the Coast Guard. Helwick v. Laird, 438 F.2d 959, 966 (5th Cir. 1971). See Polsky v. Wetherill, 455 F.2d 960 (10th Cir. 1972); Bolen v. Laird, 443 F.2d 457 (2nd Cir. 1971); United States ex rel. Healy v. Beatty, 424 F.2d 299 (5th Cir. 1970). “There is no requirement that the religious belief upon which this objection is based must manifest itself only subsequent to entry into the service. Indeed, the claimant may properly hold the same or similar religious beliefs both before and after entry into the service.” 438 F.2d at 966. We agree with the Coast Guard’s statement that Ward did have convictions opposing war and killing prior to his enlistment, but we find no basis in fact for the Coast Guard’s holding that these beliefs crystallized into objection to war in any form, satisfying the requirements for discharge as a conscientious objector, prior to Ward’s enlistment.

A finding that Ward’s objection was formulated after entry into the Coast Guard, is consistent with the application of the above principle in other in-service conscientious objector cases. Polsky v. Wetherill, 455 F.2d 960 (10th Cir. 1972); Grubb v. Birdsong, 452 F.2d 516 (6th Cir. 1971); Ames v. Laird, 450 F. 2d 315 (9th Cir. 1971); Morrison v. Larsen, 446 F.2d 250 (9th Cir. 1971); Bolen v. Laird, 443 F.2d 457 (2nd Cir. 1971); United States ex rel. Healy v. Beatty, 424 F.2d 299 (5th Cir. 1970); Goodwin v. Laird, 317 F.Supp. 863 (N. D.Cal.1970); Rautenstrauch v. Secretary of Defense, 313 F.Supp. 170, 176 (W.D.Tex.1970). In the majority of these eases the court found that the conscientious objector applicant had manifested some beliefs objecting to war before entry into the service but that these prior beliefs alone did not disqualify the applicant. Polsky v. Wetherill, supra; Bolen v. Laird, supra; Goodwin v. Laird, supra; Rautenstrauch v. Secretary of Defense, supra. The court in Polsky pointed out:

“It is undisputed that Polsky’s religious views did not change after he entered the service. Rather, his solid religious background laid the foundation for the crisis of conscience he encountered in reality when, for the first time in his life, he was faced with the actuality of violence.” 455 F.2d at 961-62.

And in Goodwin the court noted:

“ ‘Crystallization' reflects a very subtle psychological process. For some persons just reading and discussing is enough to cause them to make the mental and emotional commitment to oppose participation in war. Other persons, like petitioner, need to go through the actual experience of combat training, the experience of learning to handle and to use weapons of destruction before their beliefs crystallize into commitment.” 317 F.Supp. at 866.

In the present case Ward had experienced basic training and several years of actual service. The record reflects that during this time he became more and more apprehensive about his military service. He was dilatory in qualifying on the firing range because of his solidifying objection to war. His assignment to supervise the loading of ammunition for Vietnam and the possibility of violence even in non-combatant duties added to the crystallization of his objection. Also, his discussion and correspondence with Vietnam veterans contributed to his objections. On considering these undisputed facts with the rest of the record, it is clear that Ward has gone further than necessary to place the burden on the Coast Guard to rebut his claim. He has made a strong showing not only of the existence of his conviction but also that it crystallized after his enlistment.

In denying Ward's discharge the Commander of the Coast Guard based his decision on the reasons given by the hearing officer, a statement in the letter from E. P. Deckart, and the opinion of Ward’s acting commander. An examination of these indices reveals only that Ward held some general beliefs opposing war. There is no evidence in the record that supports a finding that Ward’s final conviction had crystallized before he enlisted. Ward in his conscientious objector application freely admits that the reason he enlisted in the Coast Guard was to avoid service in more combatant military forces. But to say his beliefs which have now crystallized into objection to service with any military organization, are the same beliefs which he held prior to enlistment is belied by Ward’s enlistment. In fact at the time he enlisted he specifically signed a statement that he was not a conscientious objector. The hearing officer, himself, had substantial doubt as to whether his conclusion was correct, and listed a number of factors supporting the fact of Ward’s subsequent formulation of objection to war. We conclude, therefore, that the Coast Guard’s denial of Ward’s application for discharge on conscientious objector grounds has no basis in fact.

Reversed and remanded.

      . Commandant Instruction 1900.2 A 6. a. (1) (a, b) provides: “No member of the Coast Guard who possessed conscientious objection beliefs before entering military service is eligible for classification as a conscientious objector if:
      (a) liis beliefs satisfied the requirements for classification as a conscientious objector pursuant to Section 6 (j) of the Military Selective Service Act of 1967, as amended (50 U.S.C. App. § 456(j)) and other provisions of law, and he failed to request classification as a conscientious objector by the Selective Service System; or
      (b) he requested classification as a conscientious objector before entering military service, and his request was denied on the merits by the Selective Service System, and his request for classification as a conscientious objector is based upon essentially the same grounds, or supported by essentially the same evidence, as the request which was denied by the Selective Service System.”

      . The letter from Mr. Deckart was submitted by Ward to support his conscientious objector beliefs. The portion relied on by the Coast Guard reads:
      “During our college years, Ken had been persistently involved in peaceful activities especially emphasizing his concern with civil rights. He often expressed his convictions in those years both verbally and through his actions that the only way to achieve progress was through non-violent approaches to the problems.
      “After college, Ken became more interested in political courses, particularly with our involvement in IndoChina. He has been an outspoken opponent of our involvement in this war and previous wars since that time. When Ken received his induction notice lie was prepared to go to Canada rather than be drafted and become an instrument of war. At this time, he considered the Coast Guard to be a less radical alternate and a way to serve his country. Ken’s ideas about this have changed since being in the Coast Guard. Since early 1970 I have encountered him many times on his beliefs. From this, I am convinced that Ken believes that participation in any form of military service is against his convictions.”

      . Ward’s acting commander, S. K. Frick, is the only person who intimated that Ward’s objection “emanates more from an inability to adjust and accept the military system in general rather than from such a change in or crystallization of his religious, moral or ethical beliefs. ...” But the courts have firmly established that opinion based on suspicion and speculation cannot satisfy the basis in fact test. Dickinson v. United States, 346 U.S. 389, 396-397, 74 S.Ct. 152, 98 L.Ed. 132 (1953) ; Helwick v. Laird, 438 F.2d 959, 967 (5th Cir. 1971) ; Adams v. Davidson, 331 F.Supp. 612, 614 (N.D.Cal. 1970). Frick offered no rationale for his statement which is contradictory to the conclusions of the other military officers who personally interviewed Ward.

      . This is aptly demonstrated by the Coast Guard commander’s, H. H. Kothe, letter to Ward’s attorney dated April 7, 1972 and quoted substantially supra.

      . In fact it is entirely possible that the hearing officer would have granted Ward’s request if he had properly applied the burden of proof. In his report the officer stated: “On full consideration of all the factors mentioned above, and on the record and hearing materiáls in general; realizing that the applicant has the burden of persuasion in this matter; I have been unable to conclude that there has been any substantial change in the applicant’s belief following his enlistment in the Coast Guard.”

      . Having granted the relief requested, there i appellant. no need to reach the other issues raised by