author: SWYGERT, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. 58.16 ACRES OF LAND, MORE OR LESS, Situated IN CLINTON COUNTY, STATE OF ILLINOIS, and George Cooley, et al., and unknown owners, Defendants-Appellants.
    No. 72-1220.
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 1973.
    Decided April 13, 1973.
    Rehearing Denied June 14, 1973.

      Paul P. Waller, Jr., Belleville, 111., for defendants-appellants.
    Kent Frizzell, Asst. Atty. Gen., Glen R. Goodsell, Atty., Dept, of Justice, Washington, D. C., Henry A. Schwarz, U. S. Atty., E. St. Louis, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, FAIRCHILD, Circuit Judge, and CAMPBELL, Senior District Judge.

      . Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   SWYGERT, Chief Judge.

This appeal concerns the extent a landowner may question the taking of his property by the federal government in the exercise of its power of eminent domain and when that question may be raised, what procedural rights are afforded the landowner, and finally, the appealability of an order denying a challenge of the United States’ right to take when that order precedes a determination of just compensation.

On June 30, 1971 the United States filed a complaint to acquire certain real estate owned by George Cooley and his wife, Elizabeth. The complaint alleged that the projected acquisition was requested by the Secretary of the Army, in conformity with the Acts of Congress, 46 Stat. 1421, 40 U.S.C. § 258a, being the Declaration of Taking Act; and under authority of 25 Stat. 94, 33 U.S.C. § 591, River and Harbor Improvement Act and 39 Stat. 950, 33 U.S. C. § 701, which authorize the acquisition of land for flood control; Public Law 75-761 which authorizes Carlyle Reservoir Project; and Public Law 91-439 which appropriated funds for such purposes. The complaint further alleged that the public uses for which the land is to be taken are that it is necessary to adequately provide for flood control downstream of the Carlyle Reservoir Dam, for reduction of flood crests in the lower and middle Mississippi River, and for other uses incidental thereto.

The land in question is a 58.16 acre tract (Tract 512-3) located in Clinton County, Illinois. It is farmland on which the Cooleys’ home and miscellaneous farm buildings are located. The land has a frontage on the Carlyle Reservoir, which was constructed during the years 1964 through 1966 by damming the Kaskaskia River. Prior to the construction the Cooleys had sold to the United States certain lands adjacent to Tract 512-3 and also had granted a floodstage easement to the government on the tract.

On the same day the complaint was filed, the Secretary of the Army filed in the district court a declaration of taking pursuant to 40 U.S.C. § 258a, and the court thereupon ordered the landowners to surrender possession of the lands to the United States on or before January 1. 1972. Both a copy of the order and a notice of condemnation were thereafter served upon the Cooleys. A week later the landowners filed an answer to the complaint, specifically challenging the Secretary’s allegation that the land was being taken for a public use. Subsequently, on October 12, 1971, the Cooleys filed a motion to vacate or modify the order for delivery of possession, asserting that they had a valid defense to the condemnation proceeding in that the Secretary’s action was “arbitrary, discriminatory, capricious, vindicative and in bad faith.” An affidavit, signed by George F. Cooley, was filed in support of the motion. The affiant asserted that after the Carlyle Reservoir Dam had been completed the filled reservoir began causing erosion of the Cooley property because of “wave action” which was due to the failure to maintain proper water levels; that the Cooleys had complained to the Army Corps of Engineers frequently during the years 1968 through 1970, but that no action had been taken to repair the damage or to prevent further erosion; that the Corps finally responded to the complaints in January 1971 by advising the Cooleys that the cost to protect their homestead exceeded its fair market value and therefore the Corps had elected to condemn the property. The affiant further alleged that the Corps intended to condemn only his land even though other tracts adjacent or near his property had similar elevations along the shoreline.

The Government answered the motion, denying that it acted in bad faith or arbitrarily and capriciously. Thereafter, the district court, without taking evidence or conducting a hearing denied the motion to vacate or modify the possession decree. The judge’s memorandum accompanying the order stated:

The Court has considered the entire matter and finds that the United States v. 80.5 Acres of Land, etc., Co. of Shasta, Cal., 448 F.2d 980 (9th Cir., 1971), is controlling here. The Court finds that defendants’ motion to amend this Court’s prior order is without merit and will, therefore, be and the same is hereby denied.

This appeal followed, and the possession order was stayed during the pendency of the appeal.

I

The order from which this appeal is taken is unclear. By referring to United States v. 80.5 Acres of Land, etc., 448 F.2d 980 (9th Cir. 1971), the district judge apparently took the position that the election of the Corps of Engineers to condemn the Cooleys’ land was not judicially reviewable. The judge went on to say, however, that the motion to vacate the order for possession was “without merit,” which might indicate that he found against the Cooleys on their claim of bad faith, arbitrariness, and capriciousness on the part of the Corps of Engineers; on the other hand, this could mean that he found the motion had no merit because it did not present a justiciable issue.

With respect to the extent of judicial review over the right of eminent domain, courts have a fundamental but narrow function. The Supreme Court in Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct. 361, 37 L.Ed. 170 (1893), delineated that function thus:

The adjudicated cases likewise establish the proposition that while the courts have power to determine whether the use for which private property is authorized by the legislature to be taken is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made.

This articulation was reiterated in Ber-man v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 101, 99 L.Ed. 27 (1954):

It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.

The determination of whether the taking of private property is for a public use may appropriately and materially be aided by exploring the good faith and rationality of the governmental body in exercising its power of eminent domain. Thus in United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 258, 91 L.Ed. 209 (1946), the Court said:

In this case, it is unnecessary to determine whether or not this selection could have been set aside by the courts as unauthorized by Congress if the designated officials had acted in bad faith or so “capriciously and arbitrarily" that their action was without adequate determining principle or was unreasoned.

Many lower federal courts have voiced the same proposition. This court in United States v. Meyer, 113 F.2d 387, 392 (7th Cir.), cert. denied, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459 (1940), said:

Defendants insist that a fee simple title was not necessary to accomplish the purposes contemplated by the legislation. But the power to decide whether such a title was needed is, by the legislation, conferred upon the Secretary and, in the absence of bad faith or abuse of discretion, such determination is not subject to judicial review. .
Determination of the extent, amount or title of property to be taken, by an Administrative Department, is, in the absence of bad faith, final. The decision as to such questions rests wholly in legislative discretion, subject only to the restraints that just compensation must be paid and the determination made in good faith.

The Ninth Circuit in Southern Pacific Land Co. v. United States, 367 F.2d 161, 162 (9th Cir. 1966), cert. denied, 386 U.S. 1030, 87 S.Ct. 1478, 18 L.Ed.2d 592 (1967) stated:

But the Supreme Court itself has declined to rule out the possibility of judicial review where the administrative decision to condemn a particular property or property interest is alleged to be arbitrary, capricious, or in bad faith. United States v. Carmack, 329 U.S. 230, 243-244, 67 S.Ct. 252, 91 L.Ed. 209 (1946). And various courts of appeal, including this one, have said that an exception to judicial nonreviewability exists in such circumstances. Simmonds v. United States, 199 F.2d 305, 306-307 (9th Cir. 1952); United States v. 64.88 Acres of Land, 244 F.2d 534, 536 (3rd Cir. 1957); United States v. Certain Real Estate, 217 F.2d 920, 926-927 (6th Cir. 1954); United States v. Certain Parcels of Land, 215 F.2d 140, 147 (3rd Cir. 1954); and United States v. Meyer, 113 F.2d 387, 392 (7th Cir. 1940). See also Wilson v. United States, 350 F.2d 901, 906-907 (10th Cir. 1965); United States v. 91.69 Acres of Land, 334 F.2d 229, 231 (4th Cir. 1964); and United States v. State of New York, 160 F.2d 479, 480 (2nd Cir. 1947).

The district court’s reliance on United States v. 80.5 Acres of Land was misplaced. In that case a federal district court entered summary judgment for the landowners, ruling that the real purpose of the taking was for public recreational use and as such the United States had no statutory authority to condemn the lands. The court of appeals reversed, stating, in effect, that when the government’s asserted purpose — other than recreational — came within the statutory authority and the evidence was adequate to show that the lands in question were needed for “proper purposes under the Act,” the district court had no authority to review the action of the governmental agency. Thus, upon analysis, that case is not inconsistent with those heretofore cited which hold that the courts are empowered to determine if the taking of private property is for a public use.

In sum, questions of bad faith, arbitrariness, and capriciousness, all bearing upon the determination of public use, having been raised by the Cooleys, the district court was required to resolve those questions.

II

Rule 71A(e) of the Federal Rules of Civil Procedure provides in part: “If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property.” Rule 71A(h) which deals with the manner and forum in which the issue of just compensation shall be determined provides in part: “Trial of all issues shall otherwise be by the court.” Thus the rule contemplates that the court in which the condemnation proceeding is filed shall ordinarily, in advance of determining just compensation, decide whether the governmental agency was authorized to take the lands sought to be condemned. In the instant case, no hearing having been afforded on the issue presented by their answer to the complaint, the landowners sought by their motion to vacate and amend the order of possession to present the issue in a forceful and concrete manner. The effort was rebuffed by the order appealed from which this appeal is taken.

There can be no doubt in our minds that the landowners under these circumstances were entitled to a hearing on their objections to the taking prior to their being required to vacate their homestead and that the hearing need not or should not have been deferred until a determination of just compensation. The fifth amendment’s mandate that “No person shall be . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation” required no less.

Ill

The Government contends that the denial of the Cooleys’ challenge to the taking of their property and of the order for delivery of possession is not an appealable order, citing Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945). That case, on its face, would appear to support the Government’s position. There landowners, contending -that the taking was unauthorized by law, attempted an appeal from a denial of a motion to vacate an order entered upon a declaration of taking filed pursuant to the Declaration of Taking Act of 1931, 40 U.S.C. §§ 258a-258e. This court held that the order was not a final decision within 28 U.S.C. § 1291. The Supreme Court affirmed. Mr. Justice Rutledge, who delivered the opinion, wrote:

Their right to appeal rests upon § 128 of the Judicial Code. This limits review to “final decisions” in the District Court. A “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U.S. 24, 28 [2 S.Ct. 6, 8, 27 L.Ed. 638]. Hence, ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case', and adjudicating all rights, including ownership and just compensation, as well as the right to take the property. This has been the repeated holding of decisions here. 324 U.S. at 233, 65 S.Ct. at 633.
* * -X- -X- -x- *
Accordingly, in our opinion the right of the owner to challenge the validity of the taking, for nonconformity with the prescribed statutory purposes, was not destroyed by the 1931 act. ... No new right of separate appeal was given. The preexisting right of appeal, including appeal on grounds relating to validity of the taking, remained in force to be exercised when and only when final judgment, disposing of the cause in its entirety, has been rendered. 324 U.S. at 243, 65 S.Ct. at 638.

The Catlin holding, however, is not as dogmatic as it would appear. The Court observed that “ordinarily” the review in condemnation proceedings must await an order or judgment “disposing of the whole case”; thus the Court must have envisioned that there could be circumstances — not ordinary — in which an appeal, interlocutory in character, is permissible. Such a circumstance presented itself in Loughran v. United States, 115 U.S.App.D.C. 196, 317 F.2d 896 (1963). In that ease the authorizing statute provided that the land to bé acquired was to be conveyed to the International Monetary Fund, an intergovernmental organization. The owners of the property sought to be condemned challenged the declaration of taking, contending that the acquisition was not for a public use. The district court refused to entertain the challenge, and the owners appealed. The District of Columbia Circuit allowed the appeal, ruling that to dismiss the appeal would permit the property to pass “beyond the jurisdiction” of the court “the instant it passed to the Fund.” The court had observed earlier that the International Monetary Fund is an “entity which is not only itself immune from process but whose property is also immune.” 317 F.2d at 899.

In interpreting 28 U.S.C. § 1291 the Supreme Court on more than one occasion has recognized that a “twilight zone” may exist which will permit appellate review of orders and judgments, interlocutory in character, that do not strictly fall within the exceptions set forth in 28 U.S.C. § 1292. In Gillespie v. U. S. Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1946), the Supreme Court affirmed the Sixth Circuit, which had reviewed the merits of an interlocutory order entered by the district court, striking certain remedies advanced by a deceased seaman’s mother who claimed damages resulting from his death in a dockside accident. There Mr. Justice Black, speaking for the Court, wrote:

In this Court respondent joins petitioner in urging us to hold that 28 U. S.C. § 1291 (1958 ed.) does not require us to dismiss this case and that we can and should decide the validity of the District Court’s order to strike. We agree. Under § 1291 an appeal may be taken from any “final” order of a district court. But as this Court often has pointed out, a decision “final” within the meaning of § 1291 does not necessarily mean the last order possible to be made in a ease. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545 [69 S.Ct. 1221, 1225, 93 L.Ed. 1528.] And our cases long have recognized that whether a ruling is “final” within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a “practical rather than a technical construction.” 379 U.S. at 152, 85 S.Ct. at 311.

At a later point Justice Black, after referring to United States v. General Motors Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 89 L.Ed. 311 (1945), stated, “this Court contrary to its usual practice reviewed a trial court’s refusal to permit proof of certain items of damages in a case not yet fully tried, because the ruling was ‘fundamental to the further conduct of the case.’ ” 379 U.S. at 153, 85 S.Ct. at 311.

We think this pragmatic approach should be applied to the instant situation. If the district judge had held a hearing and squarely ruled on the landowners’ objections to the taking, we might have a different case. But it is fair to say, we believe, that he took the position that the court could not entertain the challenge to the taking. That ruling was “fundamental to the further conduct of the case” because it left compensation as the only issue to be determined. Our view is supported by a recent Second Circuit case, United States v. Certain Lands in the Borough of Manhattan, 332 F.2d 679 (2d Cir. 1964).

When stripped of the procedural trappings that surround this appeal, we think that, in a realistic sense, the appeal is in the nature of a mandamus. The district court held it had no power to entertain the challenge asserted by the landowners. We hold to the contrary, and, in the interest of orderly judicial procedure and to conserve time, remand the case to the district court for the purpose of conducting proceedings consistent with this opinion.

Under the circumstances of this case, where the Government condemned the land in order to save costs and has no immediate need for possession of the property, we believe that it would be appropriate for the district court to continue its stay of the order of possession pending final judgment. It is so directed.

      . The notice of condemnation read in part:
      You Are Further Notified that you may serve upon the plaintiff’s attorney, at the address herein designated, an answer within twenty days after service of this notice upon you, and that the failure so to serve an answer constitutes a consent to the taking arid to the authority of the Court to proceed to hear the action and to fix the compensation.

      . The answer read in part:
      That these defendants deny that said land is taken for any public use, and specifically charge the government with having resorted to condemnation proceedings rather than to repair damage done to said property by erosion and to make necessary repairs to the shore line so that future erosion could be prevented, contrary to the spirit and purpose of the Condemnation Act enacted by Congress.
      “That the defendants’ land is the only land sought to be condemned, and tracts intervene between defendants’ tract and the Carlyle Reservoir Dam, and the acquisition of defendants’ land could in no way further the avowed purpose of providing flood control downstream of the Carlyle Reservoir Dam or for reduction of flood crests in the lower and middle Mississippi River.

      . The district court failed to make the findings necessary for an interlocutory appeal under 28 U.S.C. § 1292(b).


source: Caselaw Access Project

author: TUTTLE, Circuit Judge.

license: Public Domain

text:
    NATIONAL AIRLINES, INC., Plaintiff-Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellees, Walter R. Reed et al., Intervenors-Appellants, and Donald V. Hall et al., IntervenorsAppellants.
    No. 72-2992.
    United States Court of Appeals, Fifth Circuit
    May 24, 1973.

      Bruce E. Lazar, Miami, Fla., for Donald V. Hall and others.
    Richard L. Horn, Allan Milledge, Miami, Fla., for Walter R. Reed and others.
    William B. Killian, Miami, Fla., for National Airlines, Inc.
    Joseph P. Manners, Miami, Fla., for I.A.M.A.W.
    Don R. Livingstone, South Miami, Fla., for Taft & Tabo.
    Plato E. Papps, Gen. Counsel, IA-MAW, Washington, D. C., for defendants-appellees.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   TUTTLE, Circuit Judge.

This third appeal in a dispute arising from the mass discharge by National Airlines in January, 1969, of wildcat strikers while the “freeze” provisions of the Railway Labor Act, 45 U.S. C. § 156, were in effect is brought by two groups of intervenor employees dissatisfied with a settlement agreement between National and the International Association of Machinists and Aerospace Workers (I.A.M.). While granting the motions of both groups to intervene, the district court held that the I.A.M. had the right and authority to settle the claims of the Hall Group subject to an obligation of fair representation. The court thereupon acted on the settlement, binding even those objecting members of the I.A.M. However, it held that the claims of the other group of intervenors (Reed, Blackett, and Moseley) were not within the issues before it under the mandate of our National Airlines II order. We affirm.

I. The Hall Group

Donald V. Hall and twenty-seven other members of the I.A.M., having made substantial earnings during the out period from overtime work with other employers, were dissatisfied with the portion of the settlement providing for full deduction of these earnings from the compensation to be paid them by National. The members of the Hall Group contend that they were punished for their diligence while less enterprising employees received greater benefits as a result of having earned less during the out period.

Following our 1970 order, at the request of the union and the company, the court deferred further action in this case pending negotiations toward settlement of all outstanding claims. Following approximately a year of negotiations, National and the I.A.M. entered into an agreement covering nearly 1,000 employees entitled to reinstatement and/or back pay because of National’s illegal discharge.

The company agreed to pay each unlawfully discharged employee an amount of compensation calculated by multiplying the average number of hours the employee would have worked had he not been discharged times the claimant’s rate of pay. From this figure, interim earnings were deducted. These earnings consisted of wages and compensation from the claimant’s employment during the out period as reflected in his 1969 Federal Income Tax Return. During the year’s negotiations between the union and the company, the disputes hammered out included: The average amount of overtime likely to be lost at National by I.A.M. members (3% per member), the number of hours the employees would have worked had they not been wrongfully discharged (an average of 2100 hours), the probable wage progressions of discharged employees, and the minimum out period pay deduction which the company would allow as mitigation against its obligation to compensate the discharged employees ($2700).

This agreement was submitted to the employees with a full explanation of its terms and a statement in dollars and cents of each claimant’s compensation if the settlement were approved. The ratification vote showed that 742 favored the agreement, 104 voted against, and 111 did not return their ballots. Following presentation of this proposed settlement to the court, the parties were directed to notify all claimants of a hearing on objections to the settlement. At this time, both groups of intervenors, who had previously submitted memoran-da and motions to support their positions, presented their objections to the court.

A principal argument of the Hall intervenors is that Elgin, Joliet and Eastern Railway Company v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) (Burley I) aff’d on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946) (Burley II) precludes the I.A.M. and National from reaching a settlement which binds them. They contend that the collective bargaining representative has no authority to resolve and settle individual claims for back pay which arise from the mass discharge by National. The I.A.M. counters that the rights of the intervenors are part of a major dispute over which it has exclusive jurisdiction notwithstanding Burley I and that even if the intervenors’ rights are such disputes as were dealt with in Bur-ley I, they consented to the resolution of their claims by the union.

The distinction between major and minor disputes was discussed at length in Burley I. The Supreme Court held that while the collective bargaining representative has the exclusive right the Railway Labor Act to bargain for and bind all employees in its jurisdiction where a major dispute is concerned, it has no such exclusive right to resolve minor disputes pending before the Railway Adjustment Board when these disputes are purportedly settled without notice or an opportunity to be heard by the individual grievant. The essence of this decision was recently noted in Czosek v. O’M ara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970):

“The individual employee’s rights to participate in the processing of his grievances ‘are statutory rights, which he may exercise independently or authorize the union to exercise in his behalf’.” 397 U.S. 28, fn. 1, 90 S.Ct. 773.

While categorization of the intervenors’ claims might be difficult were Burley I the sole guide for the distinction between major and minor disputes, we must adhere to this circuit’s decision that back pay issues arising from a major dispute are not minor disputes. United Ind. Workers v. Board of Trustees of Galveston Wharves, 400 F.2d 320 at 327 (5 Cir., 1968).

Moreover, National II was concerned, inter alia, with the potential severability as a minor dispute of the claims of a group of discharged strikers who were returned to work before most of the machinists. Holding that these claims were an integral part of the major dispute, we said:

“National urges that any such employee who has lost seniority, pay or other benefits, must grieve for his loss .... Resort to grievance procedures would only further fragment proceedings already difficult enough and would be inconsistent with the underpinning principle of restoration of the status quo.” 430 F.2d at 962.

Since the massive discharge of some 1,000 I.A.M. members was a major dispute and restoration of the status quo including back pay is an integral part of this dispute, the intervenors’ claims concerning the computation of back pay are' not grievances in the Burley I sense. Therefore, the I.A.M. had exclusive authority to bargain with the company over treatment of the Hall Group’s out period overtime earnings.

The second basis for rejecting these intervenors’ claim that the I.A.M. lacked authority to bargain on their behalf is that they allowed the company and union to negotiate for nearly a year without registering any objections to being bound by whatever agreement was finally reached. As Burley II noted:

“[W]e did not rule, and there is no basis for assuming we did, that an employee can stand by with knowledge or notice of what is going on with reference to his claim, either between the carrier and the union on the property, or before the Board on their submission, allow matters to be thrashed out to a conclusion . . . and then come in for the first time to assert his individual rights.” 327 U.S. at 666-667, 66 S.Ct. at 724.

Further amplifying on this point, the Second Circuit observed:

“The Burley decisions may be said to have held that a carrier may rely on the authority of a union to negotiate a conclusive settlement of an employee’s grievance if it can be shown either that the union acted upon the basis of actual authority, whether individually given or to be gathered from the union constitution or by-laws or from custom and usage or that the employee had notice of knowledge of the actions taken by the union in his behalf and took no steps to negate the union’s authority.” Pyzynski v. New York Central Railroad Company, 421 F.2d 854 at 859-860 (2 Cir., 1970).

The Hall Group first objected to the settlement by a motion to intervene filed on February 25, 1972. By this time, the I.A.M. had spent months negotiating with the company over the method of computation for out period overtime earnings. Long before the final vote was taken registering overwhelming membership approval of the settlement, the Hall Group was aware of these negotiations and the possibility that the I.A. M. might not be able to force the company to agree to less than full deduction of interim earnings from the settlement award. The most probable reason for the delay was that the intervenors thought it more likely that the union could force a concession on this point than that they could obtain one on their own. Moreover, since the company no doubt made concessions in exchange for adherence to its position concerning full deduction of out period overtime, we could not eliminate these claimants from that settlement without overturning the agreement in its entirety. This is exactly the type of situation described in Pyzynski. The Hall Group, having allowed the I.A.M. to negotiate with the result that the company bargained under the assumption that all claimants including these twenty-eight would be bound by the settlement, may not now declare that this agreement is null and void with respect to them.

The Hall Group also contends that in computing the benefits to be paid to each prospective claimant under the settlement, the I.A.M. and National failed to utilize the applicable procedures mandated by the National Airlines II Court, which said:

“The persons determined to be entitled to reinstatement must be reinstated with full benefits including back pay. United Industrial Workers v. Board of Trustees of Galveston Wharves, 400 F.2d 320 (5th Cir., 1968), cert. den. 395 U.S. 905, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Cf. Mungin v. Florida East Coast Railway Company, 416 F.2d 1169, 1177 (5th Cir., 1969). The Galveston case describes both benefits and manner of calculation.” 430 F.2d at 961.

This Galveston description reads as follows:

“We believe it is desirable to set out some basic guidelines for the computation of the award. The obvious touchstone is the procedure used by the National Labor Relations Board: Back pay is comprised of the gross earnings which the discharged employee would normally have received during the applicable period less any net interim earnings computed on a quarterly basis with interest.” 400 F.2d at 328.

Whatever the computation guidelines are where the court itself is making an award, they do not preclude the court from approving a settlement by the parties which adopts another method of computation. As was pointed out in Galveston, “the amount of back-pay . . . should be resolved without a formal proceeding; that is, through settlement.” 400 F.2d at 328, footnote 26. Convinced that this settlement was fairly arrived at through arm’s length bargaining, that the method of computation was neither arbitrary nor unreasonable, and that the award was sufficient to insure that the violator of the Act not benefit from its violation, we decline to interfere with the agreement although judicial computation might have differed from the method actually used. Particularly in light of the fact that quarterly computations for 1,000 workers would have been significantly more difficult than were computations based on the yearly tax returns, and that the deductions for interim earnings were given in exchange for a flat rate of postulated overtime which might have been earned at National ab-' sent the discharge, we find no infirmity to the method of computation agreed to by the parties.

II. Reed, Blackett, and Moseley

Walter R. Reed, William P. Blackett, and James A. Moseley, the other interve-nors, applied to National Airlines in 1968 as flight engineer trainees. They had been notified to report for training on September 9, 1968, but on August 28 were notified that the training class was cancelled. Later, National advised them that, if they accepted employment as temporary mechanics, they would receive priority consideration for placement in the next training school. As temporary mechanics and members of the I.A.M., they were discharged along with the other plaintiffs in the initial action by I.A. M. against National.

When Reed, Blackett, and Moseley sought to attend the next training school, in July, 1969, National refused to admit them because they had been discharged. After returning in May, 1970, to the company, they attended and completed the training school for June, 1970. As a result of National’s refusal to allow them to attend the July, 1969, training school, however, all three allege that they lost seniority as flight engineers. But for this refusal, they argue they would not have been furloughed on March 1, 1971. Since the settlement agreement did not provide for their reinstatement as flight engineers and back pay for their furlough time, they considered it an unsatisfactory resolution of their claims. Reed, Blackett, and Moseley base their primary objection to the settlement upon this portion of the National Airlines II decision:

“The District Judge erred in his conception of the mandate of the prior appeal [National Airlines I] by which he was, of course, bound The only matters for him to determine were when the strikers would have returned to work and who had been replaced as of that time, and to enter a direction that those not replaced be reinstated, and to adjudicate the differences, if any, over what reinstatement carried with it .... The matter for decision was . what it could reasonably be inferred would have happened if the suspensions . . . had been removed as a cause of disaffection .... We are concerned with the right of wrongfully discharged employees to a judicially directed reinstatement under the terms of this court’s orders.” 430 F.2d at 960.

From this language, they conclude that “what reinstatement carried with it” includes compensation for their losses as flight engineers occasioned by their wrongful discharge by National while working as temporary mechanics.

The fallacy in this argument is that the I.A.M., which pressed other claims for Reed, Blackett, and Moseley, has no jurisdiction over flight engineers and therefore, could not even purport to resolve such claims with National on their behalf. While these intervenors claim that the settlement “releases NAL and IAM from all claims and matters arising out of the instant suit,” the claims of the intervenors did not arise out of this suit, but merely in conjunction with the same factual occurrences which gave rise to this suit. In holding that these claims were not before it under the mandate of our National Airlines II order, the District Court could not have contemplated that this settlement would bar the independent claims these intervenors might have as flight engineers.

With respect to the claims of both groups of intervenors, therefore, the judgment of the district court is affirmed.

      . The previously-reported decisions relating to this discharge appear at 416 F.2d 998 (5 Cir., 1969) [National Airlines I] and 430 F.2d 957 (5 Cir., 1970) [National Airlines II].

      . While the collective bargaining representative has a duty to represent fairly all those for whom it acts, particularly where the settlement of grievances is concerned, Vaca v. Sipes, 386 U.S. 171, 190-193, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), Humphrey v. Moore, 375 U.S. 335, 349, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), and Conley v. Gibson, 355 U.S. 41, 46-47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), no evidence appears to indicate that this duty was breached. There was ample evidence before the district court concerning the course of bargaining to support this finding:
      “The parties regotiated for nearly a full year and clearly in good faith. The members of the I.A.M. were represented fairly and well by their Union.”
      See United Founder’s Life Insurance Company v. Consumers National Life Ins. Co., 447 F.2d 647 (7th Cir., 1971).

      . This is a shorthand designation for the time between January, 1969, and January 31, 1970.

      . The variables involved in computation of the claimant’s rate of pay were:
      “(a) the claimant’s base hourly rate of pay;
      (b) longevity where applicable;
      (c) progression increases where applicable ;
      (d) line differential premiums where applicable;
      (e) cost of living increase for January, 1970 in the amount of $.07 per hour;
      (f) a 3% of gross earnings overtime factor (included therein is the overtime premium) ;
      (g) shift differential of $.12 per hour for all employees who were subject to three shift rotation, and a differential of $.04 per hour for those employees in Base Overhaul who were subject to two shift rotation; and
      (h) pay for holidays normally worked —since 2100 hours include the hours of 8 holidays, those claimants who normally work all holidays are credited with an additional 8 days of holiday premium pay or the equivalent of 96 straight time hours, and the 44 employees in the Stockroom who divide their holiday time are credited with an additional 4 days of holiday premium pay or the equivalent of 48 straight time hours. As to partial claimants, holiday pay and holiday premium pay, where applicable, were computed on a pro-rata basis.”

      . One eleventh of the amount reported on the 1969 return was added to each employee’s interim earnings for 1969 to approximate the amount of earnings for the month of January, 1970.

      . The intervenors were not entitled to an evidentiary hearing since the court received full statements of their claims and heard argument on the merits of each claim.

      . In Burley I, the Court first described major disputes as those relating to the “formation of collective agreements or efforts to secure them” while minor disputes were treated as those concerning the “meaning or proper application of a particular provision [of such agreement] to a specific situation or to an omitted case.” 325 U.S. at 723, 65 S.Ct. at 1290. The Court next framed the distinction as those which “present the large issues about which strikes ordinarily arise” versus those “involving grievances, [which] af-feet the smaller differences which inevitably appear in the carrying out of major agreements and policies or arise incidentally in the course of an employment.” 325 U.S. at 723-724, 65 S.Ct. at 1290. Finally the Court distinguished between situations involving the negotiation of prospective agreements and those involving settlement of claims which have already accrued in the past. 325 U.S. at 739, 65 S.Ct. 1282. These distinctions may not we think be congruent in every case.


author: PER CURIAM: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher Joseph MUSSER, Defendant-Appellant.
    No. 72-1276.
    United States Court of Appeals, Ninth Circuit.
    May 2, 1973.
    Francis A. Watson Jr. (argued), Ronald A. Rubenstein, Watson, Hoffe & Fan-nin, Richmond, Cal., for defendant-appellant.
    Robert E. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and CHOY, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

   PER CURIAM:

Defendant appeals his conviction of refusing to submit to induction (50 U.S.C. App. § 462(a)). An induction order issued September 15, 1970, ordered defendant to report on October 14, 1970. On September 21, 1970, defendant requested and received the special form for conscientious objectors which he returned to the local board on September 28, 1970. The board reviewed the claim, determined that it lacked sincerity, refused to reclassify defendant, 2**and advised defendant that he must report for induction.

It is now claimed that the board did in fact consider the claim on the merits and in fact reopened the classification, and that having done so the board could not label its action as a refusal to reopen and thus cut off defendant’s rights to appear, be heard, and appeal. Defendant relies upon Miller v. United States, 388 F.2d 973 (9th Cir. 1967).

32 C.F.R. § 1625.2 provides that a classification “shall not be re-ppened” after the induction order is mailed unless the board “first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The language is mandatory. The board lacks power to reopen in the absence of the required finding. United States v. Stupke, 451 F.2d 997 (9th Cir. 1971); United States v. Hand, 443 F.2d 826 (9th Cir. 1971). A local draft board lacking power to formally reopen cannot accomplish a de facto reopening. United States v. Nix, 437 F.2d 746 (9th Cir. 1971). Miller v. United States, supra, is not contrary. In that case the State Director, acting within his authority, had ordered the local board to reconsider.

Had Musser been inducted and had he made an in-service claim to conscientious objector status no presumption that the local board evaluated and denied that claim could have been drawn. The board was powerless to reopen the classification. Anything the board recorded in its minutes or did on the merits of Musser’s conscientious objection had no validity, force, or effect.

Affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

I recognize that a conflict in the circuits now exists on this question and that authorities in some of the circuits support the majority’s view. This conflict has been engendered by differing interpretations of the Supreme Court’s decision in Ehlert v. United States (1971) 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625. I read Ehlert, as do the First and Third Circuits, as requiring that every conscientious objector applicant has meaningful opportunity for at least one full and fair administrative determination of his conscientious objector claim and that the registrant cannot be relegated to a “ ‘no man’s land’ ” where his claim will never be administratively reviewed. See United States v. Alioto (1st Cir. 1972) 469 F.2d 722; United States v. Ziskowski (3rd Cir. 1972) 465 F.2d 480; United States v. Shomock (3rd Cir. 1972) 462 F.2d 338; see also United States v. Usdin (E.D.N.Y. Dec. 21, 1972) 6 SSLR 3039; United States v. Cotton (S.D.N.Y.1972) 346 F.Supp. 691; United States v. Takala (E.D.Mich. Sept. 11, 1972) 5 SSLR 3773.

Judge Coffin’s opinion in Alioto eloquently expresses my own views on the correct interpretation of Ehlert. That reading would compel a reversal of this conviction for the Ehlert “ ‘no man’s land’ ” script exactly fits Musser. Under the pertinent Selective Service regulations and case law, the local board could not simultaneously make an evaluative determination that his claim lacked sincerity and not reopen his classification. I am also convinced that the local board’s contradictory and ambiguous characterizations of its actions could have foreclosed appellant from an in-service forum for his conscientious objector claim. See United States v. Usdin, swpra. Finally, were I to search the record to find a basis-in-fact for the local board’s finding of appellant’s insincerity, I would be compelled to conclude that the board’s determination is wholly insupportable.

      . The local board’s minutes stated: “C.O. claim reviewed under section 1625.2 SSR and classification not reopened.” And the form letter notice to Musser said that his classification was not reopened because there had not been a change in status resulting from circumstances over which he had no control.

      . See United States v. Waldron (7th Cir. 1973) 474 F.2d 90; cf. Swift v. Director of Selective Service (D.C.Cir.1971) 145 U.S.App.D.C. 224, 448 F.2d 1147; Wright v. Ingold (7th Cir. 1971) 445 F.2d 109.

      . “That those whose views are late in crystallizing can be required to wait [to present their claims after induction], however, does not mean that they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 .. . It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo.7
      “7. Since such a ‘no man’s land’ would be intolerable our decision today simply involves settling in which forum late crystallizers must have an opportunity for a ruling on the merits. Whether they may have such an opportunity at all cannot be open to question. ...” 402 U.S. at 103-104, 91 S.Ct. at 1323.

      . Following a I-A classification by his local board on February 25, 1970, appellant was ordered on September 15, 1970, to report for induction into the armed forces on October 14, 1970. On September 21, 1970, he requested and received an SSS Form 150 for conscientious objectors. The board members reviewed his claim on September 29, 1970. A summary of that meeting by the board’s executive secretary indicates that:
      “The local board reviewed registrant’s complete claim. It was their determination that the claim lacks sincerity. Registrant must report for induction.”
      The local board minutes for that date bear the following handwritten entry: “Complete claim reviewed. Claim lacks sincerity.” In addition, a barely legible stamped entry states that the “c. o. claim reviewed under section 1625.2 SSR and classification not reopened.” On the same day of its meeting, the local board notified appellant by form letter that it had not reopened his classification:
      “This will acknowledge receipt of your communication relative to your selective service status. The information contained therein has been considered by this board and you are hereby advised it did not specifically find there has been a change in status resulting from circumstances over which you had no control. In its opinion, the reopening or reclassification of your case is therefore not warranted.”

      . Under certain circumstances a local board’s handling of a registrant’s request for a reopening and reclassification can constitute a constructive or de facto reopening of his classification, despite the board’s characterization of its action as a denial of the reopening request. E. g., United States v. Foster (9th Cir. 1971) 439 F.2d 29; Miller v. United States (9th Cir, 1967) 388 F.2d 973. Since Musser presented a prima facie case for conscientious objector status (see note 5 infra), any determination whether he was actually a conscientious objector could be evaluatively decided only through the normal processes and provisions of the regulations for considering and ascertaining classifications. The board’s own records clearly demonstrate that appellant’s claim was thoroughly reviewed. Only after this complete investigation did the board conclude the claim lacked sincerity. If the board did reopen and reconsider Musser’s request, he was denied the important procedural rights of a personal appearance and appeal conferred by 32 O.F.R. § 1625.13. Mulloy v. United States (1970) 398 U.S. 410, 417-418, 90 S.Ct. 1766, 26 L.Ed.2d 362. The order to report for induction was accordingly invalid, and Musser’s conviction for refusing to submit should be reversed.

      . As the Supreme Court has most recently observed:
      “In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. And he must show that this objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428.” Clay v. United States (1971) 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810; see also United States v. McKinley (9th Cir. 1971) 447 F.2d 962.
      In his representations to the board, appellant manifested those deeply held scruples against killing customarily associated with conscientious objection. I-Ie signed Statement B of Series I of Special Form for Conscientious Objector (SSS Form 150) :
      “I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training and service in the Armed Forces. I, therefore, claim exemption from combatant and noncombatant training and service in the Armed Forces, but am prepared to perform civilian alternative service if called. Registrants granted this status are classified I-O.”
      Commenting on the source of religious training and belief that formed the basis of his claim, Musser indicated as follows:
      “Parents & family strongly Roman Catholic. Catechism (Our Lady of Lor-etto Parish, Novato Ca.), until the age of 12 (weekly) Confirmed at 12 yrs. active member of C.Y.O. with close relationship with Parish Priests. Public school education (Novato) Close friend of family — Father Thomas Reilly ; profound influence until College age. Member Newman Club, College of Marin. Influenced by the writings of Bertrand Russel [sic] of which I have read almost everything.”
      In his attached statement amplifying his views, Musser set out in great detail the underlying reasons for his convictions and the genesis of his beliefs;
      “The nature of my belief in the sacredness of human life arises out of my religious training, and is a product of that training and the observations I have made concerning the relationship between people, and between people and their god.
      “I believe in God in the Christian (Roman Catholic) sense — as an outward, affecting omnipresent being ; and that Jesus Christ was the son of God, manifesting himself in human form for the purpose of communicating consciously with men on earth.
      “However I also believe that God is within you (‘The Kingdom of God is within you’) and can only be truly understood by inward reflection on the knowledge that is attained in the world outside the body.
      “It is this inward reflection that has brought me, spontaneously, to the realization that the spiritual life of the individual is primary; indeed it is the main purpose for living — and all else (on a purely religious level) in this life, is either meant to develop or retard the spiritual growth of men, depending on their capacity to recognize the truth and act upon it. (‘For what does a man have if he should gain the whole world, but lose his own soul?’)
      “It is also this reflection (or belief), which I realize now would not allow me to participate in any war for the reason that I might be compelled, either by outside authority or animal instinct, to take the life of a person who by virtue of his wisdom could enrich my spiritual life considerably.
      “These beliefs stem directly from my religious training. Questions 1 & 2, standard Catholic Catechism:
      1. Who made us? Ans. God made us
      2. Why did God make us? Ans. God made us to know, love and serve him that one day we might enter the kingdom of Heaven.
      “In the end it is Jesus Christ who [sic] I believe we must look to, as Christians and as human beings, for an example to follow. Being a good Christian means being as much in Ms image as possible. Though it would be academic to argue whether Jesus would have let himself be drafted or not, the fact is that he never was. The fact is that when he was nailed to the cross, with all the power of the universe at his command, he only said ‘Forgive them Lord, for they know not what they do.’
      “These beliefs may appear to be the result of a process of thinking that could not have developed in the short time since I have received my notice of Induction. Actually, I never could have written this down for the purpose for which it is intended without receiving my notice. At that time the thoughts that had been brewing in my subconscious for so long were suddenly confronted with the reality that exists— that I could be called upon to kill another man for the beliefs that other people hold. I realize now that this is something I could not do.”


author: STALEY, Circuit Judge.

text:
    UNITED STATES of America v. William Alan TOWNSEND, Appellant.
    No. 72-1240.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 19, 1972.
    Decided April 10, 1973.
    Steven A. Cotlar, Cotlar & Mantz, Doylestown, Pa., for appellant.
    Carl J. Melone, U. S. Atty., Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before STALEY, GIBBONS and ROSEN , Circuit Judges.

       Judge Rosen participated but died before the opinion was filed.

   OPINION OP THE COURT

STALEY, Circuit Judge.

William Alan Townsend appeals a conviction by a jury in the United States District Court for willful failure to submit to induction in violation of 50 U.S.C. App. § 462. The pivotal question in this case is whether the trial judge erred by refusing to recuse himself from presiding over the appellant’s trial. Arguments which raise other questions are made on appeal. We find a discussion of them unnecessary, however, since we reverse on the recusal issue.

On May 13, 1970, the appellant was classified I-A by his local draft board in Bristol, Pennsylvania. On July 24, 1970, he was mailed notice to report for induction on August 19, 1970. Townsend appeared at the induction center as ordered but did not step forward for induction. Instead, he submitted to the officer in charge a statement which indicated for the first time that he was a conscientious objector.

As the trial began, the appellant presented an affidavit to disqualify the trial judge under. 28 U.S.C. § 144 on the basis of statements allegedly made by the judge five days before at a pretrial conference. The following portions of the affidavit attributed to the judge remarks concerning the sentencing of selective service violators.

“The judge stated that the defendant’s sentence would be thirty months in prison irrespective of whether a plea would be entered or defendant would be found guilty after trial.
“The judge stated that he sentences all selective service violators to thirty months in prison if they are ‘good people.’
“The judge stated that he felt a duty to pressure conscientious objectors into submitting to induction and that a uniform thirty months sentence was the best way to effectuate that policy.”

The district judge held the affidavit to be insufficient, refused to disqualify himself, and presided over the trial.

28 U.S.C. § 144 provides:

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
“The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”

The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and sufficient affidavit. Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied per curiam, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967).

It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged. Simmons v. United States, 302 F.2d 71 (C.A.3, 1962). Neither the truth of the allegations nor the good faith of the pleader may be questioned. Simmons, supra. “[T]he section withdraws from the presiding judge a decision upon the truth of the matters alleged.” Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); see Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070 (C.A.3, 1969).

To warrant disqualification the affidavit “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233. Clearly, more than mere conclusions are required. Inland Freight Lines v. United States, 202 F.2d 169 (C.A.10, 1953). Facts including time, place, persons, and circumstances must be set forth. Hodgson v. Liquor Salesmen’s Local No. 2 of the State of New York, 444 F.2d 1344 (C.A.2, 1971).

In view of the congressional policy adopted in the following language of the Selective Service Act of 1967 (50 U.S.C. § 456 (j)), the last paragraph of the above-mentioned affidavit gives “fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment” in this case involving a conscientious objector:

“Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. * * * Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, * * * if he is found to be conscientiously opposed to participation in * * * noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) * * * such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate * *

Placing pressure on conscientious objectors “into submitting to induction” through a policy of imposing 30-month sentences indicates such a “bent of mind” in light of the above congressional policy.

Lastly, we hold the affidavit to be timely. The appellant has shown good cause for his failure to file within the time set forth in § 144. The facts upon which the judge’s bias were predicated did not occur until five days before trial. See Willenbring v. United States, 306 F.2d 944 (C.A.9, 1962).

Under these circumstances we hold that the trial judge erred in refusing to recuse himself and in presiding at the trial. The judgment of conviction will be reversed, and the cause will be remanded to the district court for further proceedings consistent with this opinion.

      . For this reason, we recognize that the able trial judge had no way to respond to the charges in the above-mentioned affidavit and, of course, we do not assume their accuracy except for the purposes of the application to disqualify under 28 U.S.C. § 144 due to the requirements of that statute.