author: BRIGHT, Circuit Judge.

text:
    MID-AMERICA TRANSPORTATION COMPANY, INC., Appellee-Cross Appellant, v. ROSE BARGE LINE, INC., and The M/V MARK EASTIN, its engines, boilers, tackle, equipment, etc., in rem and M/G Transport Services, Inc., Appellants-Cross Appellees.
    Nos. 72-1588, 72-1592.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1973.
    Decided May 7, 1973.

      John C. Shepherd, St. Louis, Mo., for Rose Barge & M/G Transport Services, Inc.
    Wilder Lucas, St. Louis, Mo., for appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   BRIGHT, Circuit Judge.

While downbound on the Upper Mississippi River adjacent to the St. Louis, Missouri, harbor, the starboard lead barge of the M/V Mark Eastin’s 15-barge tow struck a sandbar and as a result three barges sustained damages and part of the cargo was lost. The owner of the barges, Mid-America Transportation Company, Inc., brought suit in admiralty for recovery of damages against two defendants in personam, Rose Barge Line, Inc., the firm contracting with the barge owners, and M/G Transport Services, Inc., the owner of the towboat, and against one defendant in rem, M/V Mark Eastin, the towing vessel. The district court found in favor of plaintiff-Mid-America for the cost of repairs and damage to the cargo and other expenses in the sum of $125,075 (an amount stipulated to by the parties) and for loss of use for the three damaged barges in the total additional sum of $4,587.80. The court ordered entry of judgment for these amounts without pre judgment interest. The defendants appeal this judgment, urging that the district court erred in finding that the tow’s starboard lead barge was out of the channel when it ran aground, thus creating a presumption of negligence which the defendant was unable to rebut. We affirm the finding of the district court. The plaintiff cross appeals, asserting that the district court erred in declining to award prejudgment interest on the $125,075 damage award. We reverse on this issue.

I.

The district court has related in detail the facts and circumstances of this case in its memorandum opinion. Mid-America Transportation Co. v. Rose Barge Lines, Inc., 347 F.Supp. 566 (E.D.Mo.1972). No worthwhile purpose would be served by repetition of these facts here. Giving due regard' to the opportunity of the trial court to make credibility determinations, we have concluded that these findings of fact rest upon an adequate evidentiary basis. Since these findings are not clearly erroneous, they may not be set aside on this appeal. Rule 52, Fed.R.Civ.P.; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Urian v. Milstead, 473 F.2d 948 (8th Cir., 1973); Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 814 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969).

II.

We turn to the cross appeal. The plaintiff, Mid-America, claims entitlement to prejudgment interest on the full amount of stipulated damages. Mid-America argues that recovery of interest represents an element of just compensation for the actual loss which it suffered. In denying the claim, the trial court stated:

The court has reviewed the docket entries in this case, and finds no evidence of dilatory activity by defendants. The defenses were not frivolous and in all the circumstances prejudgment interest does not appear warranted in this case. [347 F.Supp. at 573.]

Although in admiralty the award of prejudgment interest rests in the discretion of the trial court, interest should be granted unless there are exceptional or peculiar circumstances. American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Sinclair Refining Co. v. SS Green Island, 426 F.2d 260 (5th Cir. 1970); The Wright, 109 F.2d 699 (2d Cir. 1940); The President Madison, 91 F.2d 835 (9th Cir. 1937). The exceptional or peculiar circumstances justifying denial of interest include delays in bringing or prosecuting the suit by the injured party. See American Zinc Co., supra, 441 F.2d 1100; The President Madison, supra, 91 F.2d 835. Here, the district court equated prejudgment interest with a penalty to be assessed against defendants for “dilatory action” or the assertion of “frivolous” defenses. But the prompt assertion of a good faith defense is not a relevant factor in determining the compensatory aspects of an award of damages, including an award of prejudgment interest.

Since the record shows no reason to deprive the injured party of an award of prejudgment interest, we remand this cause to the district court so that it may make such award. However, since the plaintiff is not entitled to be put into a better position than it would have occupied had there been no collision with the sandbar, prejudgment interest shall be computed only from the time the expenditures were actually made, i. e., the time of payment, and such computation shall apply to the payment made to Farmers Export Company, Inc., as consignor, for the loss of the cargo as well as to payments for repairs, salvage services, and survey fees as may be shown by the record.

Affirmed except as to denial of prejudgment interest,

      . The pleadings and interrogatories furnished an adequate basis for the trial court to charge Rose Barge Line, Inc., with liability for the negligent towing services provided by its subcontractor or agent, M/G Transport Services, Inc. See Todd Shipyards Corp. v. Moran Towing & Transp. Co., 247 F.2d 626 (2d Cir. 1957).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael LEVY d/b/a Mike’s Market, Appellee, v. UNITED STATES of America, Appellant.
    No. 72-1567.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 8, 1972.
    Decided April 26, 1973.

      Michael H. Stein, Dept. of Justice, for appellant; Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Alan S. Rosenthal, Atty. Dept. of Justice, Washington, D. C., on brief.
    Ronald Lee Grinker, Alan L. Sirkin, Cincinnati, Ohio, for appellee.
    Before EDWARDS and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

In March 1965, Michael Levy, doing business as Mike’s Market, was authorized to participate in the Food Stamp Program pursuant to the Food Stamp Act of 1964 and its implementing regulations. He attended a training meeting on February 25, 1965, and an educational visit was made to his store on March 2, 1965.

During succeeding weeks of 1965, 1966 and 1967, the high volume of redemption of food stamps to the total volume of sales prompted further educational visits to the market. On each of these visits Levy was contacted at which times he stated his familiarity with the regulations regarding the Food Stamp Program. In 1968, the Office of the Inspector General of the Department of Agriculture began an investigation of the market. This investigation revealed a number of alleged serious violations of the stamp program, the details of which are not necessary to discuss here for the purpose of this opinion.

As a result of the findings of this investigation the case was referred to the United States Attorney on September 26, 1968 for appropriate criminal action. On June 23, 1970, the United States Attorney determined not to prosecute and returned the file to the Department of Agriculture. During this interim administrative proceedings were held in abeyance.

On August 14, 1970, the Food and Nutrition Service of the Department of Agriculture began formal administrative proceedings. (Section 2022, Title 7, U.S.C.) The final conclusion of the administrative process in December 1970, was that the alleged violations were sustained, and that, “the known violations of the Food Stamp Program requirements were serious, repetitive and damaging to the program, and because prior efforts to obtain voluntary compliance were ineffective * * *." Mr. Levy’s market was disqualified from participation in the Food Stamp Program for a period of one year.

Having exhausted his administrative remedies, Levy brought this action in the United States District Court for the Southern District of Ohio, Western Division, for a judicial review of his disqualification in a trial de novo as provided by Section 2022, Title 7, U.S.C. The district judge granted a permanent injunction, enjoining the government from disqualifying Levy, the plaintiff, from the Food Stamp Program, based on any activity of the plaintiff prior to May 1, 1968. The basis of the Court’s decision was that there had been undue administrative delay on the part of the government in beginning its administrative process. He relied upon a provision of 7 C.F.R. 272.6(b): “Such letter shall inform the retailer or food wholesaler that he may respond either orally or in writing to the charges contained therein within ten days of the mailing date thereof * * *." From this the trial judge finds, “Innate in the Regs, is the requirement of speed.”

The Government perfected this appeal. We reverse.

There is no time limit fixed either by statute or regulations in which administrative procedure must be begun after completion of an investigation. Reliance on the provision of the regulations above quoted is misplaced. It refers to a step in the administrative procedure. The delay in this case was not caused by negligence or an intention to delay the beginning of the administrative process. It was due to the time the United States attorney held the file before determining not to bring criminal proceedings.

An administrative determination may not be invalidated because of lapse of time. N.L.R.B. v. Staub Cleaners, Inc., 418 F.2d 1086, 1089 (C.A.2), cert. den. 397 U.S. 1038, 90 S.Ct. 1357, 25 L. Ed.2d 649; Bryant Chucking Grinder Company v. N.L.R.B., 389 F.2d 565, 568 (C.A.2), cert. den. 392 U.S. 908, 88 S.Ct. 2055, 20 L.Ed.2d 1366; Pacemaker Corp. v. National Labor Relations Bd., 260 F.2d 880, 883 (C.A.7); F.T.C. v. Texaco, Inc., 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714; Labor Board v. Katz, 369 U.S. 736, 748 fn. 16, 82 S.Ct. 1107, 8 L.Ed.2d 230.

The Supreme Court has consistently adhered to the principle that laches is not a defense against the sovereign. Costello v. United States, 365 U.S. 265, 281, 81 S.Ct. 534, 5 L.Ed.2d 551; Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791.

The order granting a permanent injunction is vacated and the case is remanded to the District Court for a de novo trial on the merits.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Domingo RUIZ, Defendant-Appellant.
    No. 801, Docket 73-1217.
    United States Court of Appeals, Second Circuit.
    Argued April 19, 1973.
    Decided April 30, 1973.

      J. Jeffrey Weisenfeld, New York City, for defendant-appellant.
    Arthur J. Viviani, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., on the brief), for appellee.
    Before CLARK, Associate Justice, WATERMAN and FEINBERG, Circuit Judges.

       Retired Associate Justice of the United States Supreme Court, sitting by designation.

   PER CURIAM:

Appellant Ruiz was convicted below of conspiracy to distribute heroin. The sole issue in this appeal is whether the government introduced sufficient non-hearsay evidence of conspiracy to justify the admission into evidence of hearsay statements of Victor Torres, an alleged co-conspirator, implicating Ruiz.

On April 18, 1972, undercover police officer Minichiello met Torres for the first time and offered to buy heroin. Upon learning that Minichiello had $1200, Torres led him to a Manhattan address where Torres spoke briefly to a group of people standing on the street beyond the officer’s hearing. Torres returned to the car in which Minichiello was waiting and talked about future purchases. Torres spoke with the nearby group a second time and then got into the car with Minichiello. About 20 minutes later Minichiello observed appellant Ruiz standing ten feet from the car. Ruiz looked at Torres and nodded his head at him. At this point Torres stated to Minichiello: “That’s my man. He’s got the package.” Torres left the car, joined Ruiz in front of the former’s nearby apartment building, and the two entered together. One minute later Ruiz emerged from the building, followed by Torres a few seconds later. Torres summoned Minichiello from the car, and the two went up to Torres’ second floor apartment, where a heroin sale was consummated.

On May 2, 1972, Torres made a second sale to Minichiello. They drove together to Torres’ apartment building, where Torres left the car, entered his residence, and returned to the car. While the two waited, Ruiz passed by and nodded to Torres, who left the car without speaking to Ruiz and walked into his residence. Torres returned shortly and summoned Minichiello. They went to Torres’ apartment, where Torres removed heroin from a cupboard and sold it to Minichiello for $1200.

When Torres was arrested on May 15, 1972, a search of his person turned up a slip of paper bearing the name “Mingo,” Ruiz’ nickname, and the telephone number “534-7972,” almost identical to Ruiz’ number at the time (534-7971).

Ruiz argues specifically that the slip of paper was hearsay and therefore not relevant on the threshold question of whether there was a conspiracy. We disagree. The paper was not introduced to prove the truth or falsity of its contents. It was merely evidence supporting the inference that Torres knew Ruiz and anticipated calling him on the telephone. See United States v. Armone, 363 F.2d 385, 404 (2 Cir. 1966).

Ruiz argues generally that there was insufficient evidence of conspiracy, whether or not the slip of paper was hearsay. At the first sale Torres waited until Ruiz arrived to make the heroin sale. Ruiz signalled to him and the two went into Ruiz’ residence for only one minute. Immediately thereafter, Torres brought Minichiello in and sold him heroin. Two weeks later a similar pattern of events occurred in connection with the second heroin sale. Torres waited until Ruiz appeared and signalled to him before he took Minichiello into his apartment and made the sale. This evidence was sufficient preponderance to warrant a finding of conspiracy. United States v. Geaney, 417 F.2d 1116, 1120 (2 Cir. 1969), cert. denied sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed. 2d 539 (1970).

The judgment is affirmed.


author: LEWIS R. MORGAN, Circuit Judge: COLEMAN, Circuit Judge

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. NATIONAL BANKERS LIFE INSURANCE COMPANY et al., Defendants, Tom Max Thomas et al., Defendants-Appellants.
    No. 71-3599.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.
    Larry Huelbig, Dallas, Tex., for Thomas.
    Willard Herbert, Dallas, Tex., for Osorio.
    Charles P. Storey, Dallas, Tex., for Carr.
    Robert M. Cady, Dallas, Tex., for Hoover.
    John Bass, Dallas, Tex., Gene M. Gardner, Duncan, Okl., for So. Atlantic Corp.
    G. Bradford Cook, Gen. Counsel, S. E. C., Washington, D. C., Gerald E. Boltz, Robert F. Watson, Ernest Steve Watson, Fort Worth, Tex., Walter P. North, Associate Gen. Counsel, Jacob H. Stillman, Asst. Gen. Counsel, Alan Blank, Sp. Counsel, S.E.C., Washington, D. C., for plaintiff-appellee.
    Arthur F. Mathews, A. Douglas Me-lamed, John H. Korns, II, amicus curiae for Jarrell B. Ormand, Washington, D. C.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

In this case the Securities and Exchange Commission filed a civil action to permanently enjoin certain corporations and individuals from distributing unregistered securities and engaging in fraudulent manipulative practices in connection with the sale of securities.

Prior to the judgment below, nine of the defendants had agreed to permanent injunctions and the SEC had dismissed five defendants without prejudice to refiling. Of the original 28 defendants in this case, only the following actively contested at trial the issuance of an injunction: J. Quincy Adams, Audy By-ram, Waggoner Carr, James Farha, David Hoover, John Osorio, Phillip Proctor, Tom Max Thomas, and South Atlantic Company [SAC]. Nashwood Corporation was in default and the following did not actively contest the allegations of the complaint: Frank W. Sharp, Sharpstown Realty Co., Oak Forest Realty Co., and Oak Forest Investment Co.

Only four of the defendants, Waggoner Carr, David Hoover, John Osorio and South Atlantic Corporation, have appealed the judgment of the district court.

In an opinion which discusses thoroughly the facts, Judge Sarah T. Hughes held that the facts were ample to illustrate that there were manipulations, misrepresentations and fraud sufficient to constitute violations of the securities laws, and that a permanent injunction should be ordered.

Each of the appellants allege that the facts are insufficient to justify his inclusion in the group covered by the injunction. An exhaustive study of the record of this case shows ample evidence to establish that each appellant was sufficiently connected with this complex affair to support the findings of involvement in past, present or imminent future violations so as to justify an injunction against manipulations in futuro.

The judgment is affirmed.

COLEMAN, Circuit Judge

(concurring in part and dissenting in part):

With no difficulty at all I can, and do, concur in the opinion of this Court affirming the judgment below as to David Hoover, John Osorio, and South Atlantic Corporation.

As to the remaining appellant, Wag-goner Carr, I have serious doubt.

As the opinion points out, this was indeed a “complex affair”. The trial record consumed 2,533 pages. Since I am in agreement as to all appellants except one, I restrict my discussion to the findings of the District Court applicable to Mr. Carr. These findings are reported, 334 F.Supp. 452-453:

L. Waggoner Carr
1. At all times pertinent hereto defendant Waggoner Carr was a controlling shareholder of Nashwood.
2. Between approximately October of 1968 and June 1970 defendant Carr was a controlling shareholder and director of CB&T.
3. Between approximately October of 1969 and May of 1970 defendant Carr was chairman of the board and a member of the loan committee of CB&T.
4. At all times pertinent hereto defendant Carr was a controlling shareholder of SAC and RIC.
5. Between approximately April of 1969 and July of 1970 defendant Carr was a director, a vice president and chairman of the executive committee of RIC.
6. Between approximately April of 1969 and June of 1970 defendant Carr was a controlling shareholder of DB&T.
7. In his capacity as a controlling person of CB&T, defendant Carr approved the CB&T loan of $550,000.00 to Osorio and Carr, secured by 222,735 shares of SAC stock. While a controlling person and chairman of the board of CB&T and a controlling person of DB&T, those entities participated in a loan of $641,000.00 to NBL Plan, for the purpose of purchasing 22,500 shares of NBL stock.
8. As a controlling person, chairman of the board and member of the loan committee of CB&T, defendant Carr arranged for CB&T to make loans totaling approximately $165,-371.23 to FLAP, Inc. to enable FLAP, Inc. to purchase stock of NBL and OLI from Ling & Co.
9. As a controlling person of Nashwood and DB&T, defendant Carr approved the Nashwood purchase of NBL stock and used DB&T to finance such purchase, as more fully set out in paragraph J. 4. While a controlling person of Nashwood, which in turn owned West Virginia Life Insurance Company, that entity purchased MCI stock from Ling & Co., as more fully set out in paragraph J. 10.
10. As a controlling person of Nashwood, defendant Carr pledged 66,666 shares of NBL stock at SSB, as more fully described in paragraph J. 3.

As to whether these findings justified an injunction against Carr, his counsel cogently urges:

Carr’s pledge of unregistered stock was not a violation of the Securities Act, that the Commission failed its burden of proving that Carr aided and abetted the unlawful pledge of stock as collateral, that there is no evidence that Carr aided and abetted a scheme to manipulate and defraud, and that there was no evidence that Carr used the mails or-an instrumentality of commerce.

Upon consideration of the record as a whole, and particularly the specific findings as to this appellant, I would reverse and remand with directions that as to' him the injunction be dissolved.

      . The original 28 defendants in this case were: National Bankers Life Insurance Co., National Bankers Life Insurance Co. Employees Retirement Plan, Master Control, Inc., Olympic Life Insurance Company, Nashwood Corporation, Flap, Inc., South Atlantic Company, Sharpstown Realty Company, Oak Forest Realty Company, Oak Forest Investment Company. Sharpstown State Bank, Dallas Bank & Trust Company, Frank W. Sharp, John Osorio, J. Quincy Adams, Waggoner Carr, Joseph P. Novotny, Tom Max Thomas, Sam Stock, Michael F. Ling, Donald S. Akins, Phillip I. Proctor, William B. Strange, Jr., James Far-ha, David Hoover, Audy Byram and H. E. McCain.

      . Securities & Exchange Commission v. National Bankers Life Insurance Company, 334 F.Supp. 444 (N.D.Tex.1971).


author: SOLOMON, District Judge:

text:
    UNITED STATES of America, Appellee, v. Jose Rafael TORRES, Appellant.
    No. 72-2386.
    United States Court of Appeals, Ninth Circuit.
    April 23, 1973.

      William Struthers (argued), Struthers & Harris, Livermore, Cal., for appellant.
    Donald F. Shanahan, Asst. U. S. Atty. (argued), Harry D: Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before BROWNING and ELY, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, United States District Judge, Portland, Oregon, sitting by designation.

   SOLOMON, District Judge:

Torres appeals his conviction for importing and possessing cocaine and heroin. 21 U.S.C. §§ 841(a)(1), 952 and 960.

On January 18, 1972, Torres drove from San Diego to Tijuana with Isabel Figueroa and Anselmo Lebrón. They stayed in Tijuana about seven hours and then returned to the United States. The customs inspector at the San Ysidro Port of Entry found 1.75 ounces of heroin and .6 gram of cocaine in Torres’ jacket pocket.

At trial, Torres asserted that he did not know how the drugs got there. He testified that there were no drugs in the jacket when he put it in the back seat of the car; that he put on the jacket when he got out of the car at the customs station; and that he did not notice the small package of drugs until the inspector found it.

Lebrón rode in the back seat of the car. According to Torres, Lebrón put the drugs in the jacket while it was on the back seat. Torres called Figueroa as a defense witness, but she could not remember whether the jacket had been in the back. Torres also called Lebrón. Lebrón testified that Torres wore the jacket the entire time.

Torres wanted to impeach Lebron’s testimony by introducing his prior conviction for selling heroin, for which Lebrón was on probation. The trial judge refused to permit Torres to do this on the ground that, absent surprise, one may not impeach his own witness. The Court also rejected Torres’ request that the Court call Lebrón as the Court’s own witness. Torres asserts that the Court’s refusal to permit impeachment was error requiring reversal.

We agree.

It was crucial to Torres’ defense to show that Lebron’s testimony was false and that Lebrón had reason to lie. It was in Lebron’s interest to lie to save himself from prosecution and from revocation of his probation for the prior conviction. If the Court had permitted Torres to introduce Lebron’s record, the jury might have disbelieved Lebron’s testimony and acquitted Torres.

In United States v. Freeman, 302 F.2d 347, 351 (2d Cir. 1962), the Second Circuit rejected the rule against impeaching a party’s own witness as a pointless limitation on the “search for truth.”

The Proposed Federal Rules of Evidence (Rule 607) also reject the old rule. The Advisory Committee recommended this change because:

“A party does not hold out his witnesses as worthy of belief since he rarely has a free choice in selecting them. Denial of the right [of impeachment] leaves the party at the mercy of the witness and the adversary.”

In the recent case of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court reversed a state court conviction in which a defendant was not permitted to impeach his own witness.

Reversed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Alfred LYNCH, Defendant-Appellant.
    No. 72-2165.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1973.
    Decided May 8, 1973.
    William T. Wuliger, court appointed, Cleveland, Ohio, on brief, for defendant-appellant.
    John P. Berena, Asst. U. S. Atty., Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief, for plaintiffappellee.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   PER CURIAM.

Appellant in this case was convicted after jury trial on a charge of armed bank robbery, in violation of 18 U.S.C. § 2113(a) (d) (1970), and appeals his judgment and sentence of seven years under the Youth Corrections Act, 18 U. S.C. § 5010(c) (1970).

Appellant was identified at trial by one of the bank robbers as the driver of the get-away car. When he was arrested by the FBI, he had in his possession approximately a third of the proceeds of the bank robbery, including $330 in marked or “bait” money.

The principal appellate issue argued to the court is appellant’s contention that Judge Thomas committed reversible error when the jury, after two hours of deliberation, returned to court and informed him that they were deadlocked, five jurors being for guilty and seven for acquittal. Judge Thomas then sent them home for the weekend (to return the following Monday morning), telling them in part as follows:

Mr. Noster and ladies and gentlemen of the jury, I received your note. However, because of the fact that the jury began its deliberations just this afternoon, I am going to request that you return Monday to resume your deliberations.
I do want to say, though, that a jury, necessarily, to return a verdict, must have the unanimous concurrence of all twelve jurors. It is the duty of the jurors to consult with one another and to deliberate with a view towards reaching agreement, if they can do so without violence to their individual judgment. Each juror, of course, must decide the case for himself, but only after an impartial consideration of the evidence and of the discussion and of the consultation with his fellow jurors.
Remember at all times, finally, that jurors are not partisans. You are judges, judges of the facts. A jury’s sole interest is to seek the truth from the evidence in the case.
I would ask that you go home, remember carefully the instructions that you must not talk about this case over this long week end— ....

No objection was made to the Judge’s statement to the jury at the time, as there had been no objection to his charge, which had dealt completely with the presumption of innocence and the requirement of proof beyond reasonable doubt. The jury on Monday morning was in possession of the Judge’s written charge setting forth these elements (among others) of the applicable law.

It is appellant’s contention that the sentence, “A jury’s sole interest is to seek the truth from the evidence in the case” was in effect substituted by the Judge’s statement for the requirement of proof beyond reasonable doubt.

Taking the Judge’s charge and this statement in proper context, we find no reason to conclude that the jury would believe that the requirement of proof beyond reasonable doubt had been eliminated. We find no reversible error as to this issue.

On review of appellant’s complaint concerning the state’s failure to make available to defendant’s counsel a statement taken from defendant’s mother, we are convinced that the limited impeachment use made of same under the District Judge’s instruction did not constitute reversible error.

The judgment of the District Court is affirmed.


text:
    UNITED STATES STEEL CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 72-1560.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 27, 1973.
    Decided April 19, 1973.
    Rehearing Denied May 10, 1973.

      George W. Latimer, of Parsons, Behle & Latimer, Salt Lake City, Utah (Erie V. Boorman of Parsons, Behle & Latimer, Salt Lake City, Utah, on the brief), for plaintiff-appellant.
    Peter W. Gross, Atty., E. E. O. C. (C. Nelson Day, U. S. Atty., Salt Lake City, Utah, and William A. Carey, Gen. Counsel, John de J. Pemberton, Jr., Deputy Gen. Counsel, Julia P. Cooper, Chief, Appellate Div. and George H. Weiler, III, Atty., E. E. O. C., on the brief), for defendants-appellees.
    Before BREITENSTEIN and DOYLE, Circuit Judges, and TALBOT SMITH, District Judge.

       Sitting by designation.

   PER CURIAM.

On March 2,1971, the Commissioner of the Equal Employment Opportunity Commission alleged in a complaint filed before the Commission, pursuant to § 706(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a), that he had reasonable cause to believe that appellant, United States Steel Corp., Inc., had violated and continued to violate § 703(a) of the Act by discriminating against Negroes, American Indians and Spanish surnamed Americans on the basis of race and/or national origin in recruitment, hiring and promotional opportunities. Pursuant to §§ 709(a) and 710(a) of the Act, the EEOC filed a Demand for Access to Evidence of appellant. Within the allowed statutory period provided by § 710(c), appellant filed a petition in the United States District Court for the District of Utah, Central Division, to Dismiss Commissioner’s Charge and to Set Aside or Modify Demand for Access to Evidence. The EEOC cross-petitioned for an order enforcing its demand. In a Memorandum Decision filed September 2, 1971, the District Court denied appellant’s petition and allowed the cross-petition of appellees seeking enforcement of its demand for access to evidence.

The sole issue before this court is whether the Commissioner’s charge sets forth facts with sufficient specificity to satisfy the requirements of 42 U.S.C. § 2000e-5(a) and thus warrant the enforcement of the Commissioner’s demand for access to evidence. The charge by the Commissioner alleged:

Respondent diseriminatorily fails and/or refuses to recruit and/or hire Negroes, American Indians in the same manner in which it hires and/or recruits Anglos.
Respondent diseriminatorily fails to provide Negroes, American Indians, and Spanish Surnamed Americans with an equal opportunity for promotions.

Subsequent to the district court’s decision in this case, denying the motion of appellant and granting relief to the Commissioner, we dealt with the mentioned issue now presented here for review. See Mountain States Tel. & Tel. Co. v. EEOC, 466 F.2d 541 (10th Cir. 1972); Coors Co. v. EEOC, 464 F.2d 1270 (10th Cir. 1972, cert. denied, 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 584; Sparton Southwest, Inc. v. EEOC, 461 F.2d 1055 (10th Cir. 1972). These decisions control the present controversy. Accordingly, the judgment of the district .court is affirmed.

      . 42 U.S.C. § 2000e-5(a) provides in relevant part:
      (a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice * * *


author: SEITZ, Chief Judge.

text:
    Marco Antonio RIVERA, Appellant, v. UNITED STATES of America.
    No. 72-1669.
    United States Court of Appeals, Third Circuit.
    Submitted under Third Circuit Rule 12(6) March 1, 1973.
    Decided April 27, 1973.
    Charles B. Burr, II, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for appellant.
    Joel D. Sacks, U. S. Atty., Julio A. Brady, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge and VAN DUSEN and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

This is an appeal from a denial by the district court of a motion under 28 U.S. C. § 2255 to vacate sentence and set aside a judgment.

In 1968, appellant’s retained counsel filed a notice of appeal from his conviction and life sentence. Subsequently his trial counsel was superseded on appeal by counsel appointed by this court. Appointed counsel did not file a brief and appendix as required by the rules of this court. Instead, he notified the court that he had been unable to find any basis for appeal. However, he took no other action. Many months later, after notice to counsel, the appeal was dismissed for want of timely prosecution.

Thereafter, appellant himself filed the § 2255 motion with the district court claiming, inter alia, that he had been denied his right of direct appeal because of ineffective assistance of counsel. The district court denied the motion essentially on the ground that a § 2255 proceeding cannot be employed as a method of reviewing the action of the Court of Appeals in dismissing an appeal. We agree. The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred in dismissing an appeal is self-evident.

As the district court noted, appellant’s remedy is by way of a motion directed to the Court of Appeals requesting a recall of the mandate so that it could determine whether the appeal should be reinstated. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962). Since a panel of this court has previously denied reconsideration, it is evident that if a motion to recall the mandate is filed and granted, the reinstatement issue should then be considered by the court en banc. We say this because of the court policy that a panel decision is not overturned except by en banc action.

The judgment of the district court will be affirmed.

      . Overruled on another issue, Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

      . Appellant’s present counsel was appointed by this court under the Criminal Justice Act. If appellant desires to file a motion to recall the mandate he may wish to apply to this court for the appointment of his present counsel for that purpose.


text:
    NORCOAST CONSTRUCTORS, INC., and Morrison-Knudsen Company, Inc., a joint venture v. The UNITED STATES.
    No. 376-68.
    United States Court of Claims.
    May 11, 1973.
    Lyle L. Iversen, Seattle, Wash., attorney of record for plaintiff; Lycette, Diamond & Sylvester, Seattle, Wash., of counsel.
    R. W. Koskinen, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.
    Before DAVIS, Acting Chief Judge, DURFEE, Senior Judge, and SKELTON, NICHOLS, KASHIWA, KUNZIG, and BENNETT, Judges.
   OPINION

PER CURIAM.

This is a Wunderlich Act (41 U.S.C. §§ 321, 322) Review case that was previously before the court on entitlement, 448 F.2d 1400, 196 Ct.Cl. 1 (1971). Now it is here on quantum. We reversed the original decision of the Armed Services Board of Contract Appeals (ASBCA) which would have denied recovery. After full briefing and oral argument, we affirm its quantum decision.

Plaintiff, a joint venture, had contracted to furnish logistic support for an underground test nuclear explosion on Amchitka in the Aleutians, and among other things to “furnish and install diesel fuel storage facilities” for $139,900. It installed a welded steel tank and the dispute was whether defendant owned it at the conclusion of contract performance. The contracting officer held it did and the ASBCA affirmed. We held to the contrary and that the contracting officer’s decision was a constructive change order, for which an equitable adjustment was necessary. We suspended for the Board to determine quantum if the parties did not agree.

They did not, and the Board awarded $40,000. This, it found, was the “salvage value” of the tank. Defendant owned the island and plaintiff, the ASBCA held, had no right to the use of it as a location for the tank. By a contract provision, it was required to remove all its property. Since the Board found the installation cost the plaintiff $150,000, the adjustment appears to allow a reasonable profit on the work covered by the diesel fuel storage item as constructively changed.

Before the Board and here, the plaintiff urged that it had title to the tank until 1967, two years after the work on the instant contract was complete. At that time, it says, the contracting officer took title to it by his decision then rendered. In 1967 work on a follow-up nuclear explosion was getting underway, there was a demand for the tank, and its value in place on Amchitka was much enhanced. The removal requirement was waived, it says.

This is in effect an eminent domain theory, rather than the disputes clause theory under which the case was dealt with hitherto. If plaintiff was suing for an eminent domain taking, it had no business before the ASBCA and we should not have suspended for determination of quantum there. Moreover, the plaintiff having at best a mere revocable license to leave the tank in place on Amchitka, up to 1967 (if the removal requirement was waived), its claim of value enhancement from the tank’s position runs counter to a recent Supreme Court decision, United States v. Fuller, 409 U. S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973).

Plaintiff says the amendment effected by the change order was to leave the $139,900 figure standing as> rental for use of the tank up to 1967, and add to it an obligation to pay the full market value of the tank as of that date, over $200,000. However, the contracting officer’s theory plainly was that the defendant owned the tank from the day it was installed. The result of the constructive change order was to amend the contract to effectuate the contracting officer’s interpretation, and that is what the equitable adjustment must pay for. Once this is clearly seen, no rational attack on the Board’s award on the ground of insufficiency can be made on the record before us. Bruce Constr. Corp. v. United States, 324 F.2d 516, 163 Ct.Cl. 97 (1963).

Defendant would have us award only $10,000, apparently to eliminate all profit. We find it unnecessary to discuss this view.

The quantum decision of the ASBCA is supported by substantial evidence. It is not arbitrary or capricious. It is in accordance with law. By Wunderlich Act standards, it is binding on the parties here.

Accordingly plaintiff’s amended motion for summary judgment is granted, defendant’s cross motion for summary judgment is denied and judgment is entered for plaintiff in the sum of $40,000.


author: DAVIS, Judge:

text:
    WILLIAM GREEN CONSTRUCTION COMPANY, INC. and United States Fidelity & Guaranty Company v. The UNITED STATES.
    No. 124-72.
    United States Court of Claims.
    May 11, 1973.

      James V. Dolan, Washington, D. C., for plaintiffs; Stanley C. Morris, Jr., Washington, D. C., attorney of record. Richard A. Behrens, Michael Malley and Steptoe & Johnson, Washington, D. C., of counsel.
    Judith Ann Yannello, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG, and BENNETT, Judges.
   ON DEFENDANT’S MOTION TO DISMISS THE PETITION

DAVIS, Judge:

Three separate government construction contracts are interlaced in this case. In November 1964 plaintiff William Green Construction Company (Green) agreed with the General Services Administration to build a women’s residence hall at Howard University in the District of Columbia (the Howard University contract). About the same time Green also contracted with GSA to construct a Post Office and Federal Office Building in Portsmouth, New Hampshire (the FOB contract). A year and one-half later, the same agency arranged with plaintiff Green to erect the National Training School for Boys in Morgan-town, West Virginia (Training School contract). Plaintiff United States Fidelity & Guaranty Company (USF & G) was the surety on the Howard University and FOB contracts; another company was surety on the Training School agreement. Green was also working, during this period, on three nonfederal projects on which USF & G was surety.

In 1965-1966, during performance of the Howard University work, the contractor and the defendant had a serious dispute whether certain of the government specifications were defective and impossible to carry out. When Green refused on that ground to go forward, the contracting officer terminated for default. Green challenged this determination, insisting that its inability to proceed was justified by the defects in the defendant’s requirements.

In the discussions which followed, defendant indicated that it intended to set off, against amounts which would be owing on the other two of Green’s federal contracts, the liquidated damages and excess completion costs assessable with respect to the just-terminated Howard University agreement. Green responded that such set-offs were improper — because the default-termination was unwarranted — and would make it financially impossible to proceed with completion of the other two contracts, and, more than that, the contractor’s entire business would be destroyed. For this reason, Green and USF & G asked the GSA to isolate the Howard University dispute and not to impose set-offs, but the Government refused to make such a commitment.

Shortly after the Government had made it clear that it fully maintained its right of set-off, but before any set-off had actually occurred, Green informed GSA that, because of the threat to reduce payments on the other projects, it was financially unable to, and would not, proceed with the FOB and Training School contracts. These two agreements were then terminated by the Government for default. USF & G completed the FOB work, and apparently the other surety did the same for the Training School contract. Green likewise failed to complete the three nonfederal contracts it had, and went out of business.

Green appealed to the General Services Board of Contract Appeals from the default-termination of the Howard University contract, but it never sought review by the Board of the defaults with respect to FOB and Training School. The Howard appeal asked, not only for the conventional modern adjustment for an improper default-termination, but also for damages for losses on FOB and Training School, as well as on the non-federal projects, and for loss of Green’s business as a whole. Because of the inclusion of these items of recovery, the Government moved the board to dismiss the appeal as for “breach of contract” and “unliquidated damages”, beyond the board’s authority. In 1968 the board partially granted this motion, dismissing all claims except that for an equitable adjustment under convenience-termination standards.

Later, in 1971, the parties stipulated before the board that Green “was not in default at the time it received notice of the termination [of the Howard University contract] and the Government concedes the termination for default was erroneously made by the contracting officer. The appeal, therefore, should be granted as defined by the prior decisions of the Board in this ease.” The GSBCA then found that the contractor’s “right to proceed under the contract was improperly terminated for default”, and remanded to the contracting officer to determine the equitable adjustment for the unreimbursed costs of performing the Howard work. The stipulation expressly provided that “any equitable adjustment under the contract shall not be prejudicial to [the contractor’s] right to proceed in the Court of Claims for additional damages not the subject of such equitable adjustment.” GSBCA No. 2114, 71-2 BCA ¶ 9116.

In 1972 Green and USF & G brought this action, alleging what we have thus far set forth, asking for the large damages (over $2,700,000) the board had dismissed from the Howard appeal, and claiming that those damages are recoverable on the theory that the United States breached all three of Green’s federal contracts. Count I of the petition asserts the full claim as a breach of the Howard contract, while Count II bottoms the very same claim on alleged breach of the FOB and Training School agreements. Defendant has moved to dismiss the petition for failing to state any proper claim.

We think that the claimants do not have a “breach” claim against defendant on any of the three contracts, but that plaintiff Green does have a right to a convenience-termination type of equitable adjustment, under all three of them, and that such adjustments should be awarded administratively. We discuss the three agreements seriatim,.

Howard University contract (Count I): The defendant’s notice of default-termination of the Howard contract triggered the default-termination clause which provided that, if it was determined for any reason “that the Contractor was not in default under the provisions of this clause”, or that “the delay was excusable”, the matter was to be treated as a convenience-termination if the contract contained a convenience-termination article, and, if not, the contract was to “be equitably adjusted to compensate for such termination.” We have held that the latter alternative calls for the general equivalent of a convenience-termination award. General Builders Supply Co. v. United States, 409 F.2d 246, 187 Ct.Cl. 477 (1969).

It follows that when the GSBCA determined that Green’s right to proceed was wrongfully ended, and remanded for an appropriate adjustment, the contractor received the maximum to which it was entitled under the contract. There is no present complaint as to the amount of the equitable adjustment, and plaintiffs do not contend that such an award can or should cover the types of consequential damage they seek here. The petition suggests, however, that a breach claim for a wrongful default-termination somehow survived for these additional items of recovery.

But it is very plain under our decisions that the administrative remedy is the only one available to the contractor. Green does not retain a “breach” claim, for an improper default, which can be brought in court and through which a supplemental award can be obtained. See General Builders Supply Co., supra, 409 F.2d at 248 n. 3, 187 Ct.Cl. at 480 n. 3; G. C. Casebolt Co. v. United States, 421 F.2d 710, 712, 190 Ct.Cl. 783, 486-487 (1970). The exclusive remedy “under the contract” substitutes for the “breach” claim which would otherwise exist, and becomes the claimant’s sole form of relief. The measure of recovery for a convenience-termination — costs incurred, plus a reasonable profit on work performed — is an adequate replacement for the common-law cause of action. See infra.

It is worth noting, in addition, that in any event the type of consequential damage for which plaintiffs now press could not be obtained under Count I even if there were no such default-termination clause in the contract and this suit were properly one for common-law breach for wrongful cancellation of the Howard University pact. On the face of the petition it was not the wrongful termination itself which caused either Green’s inability to proceed on the other two federal contracts, or the stoppage of work on the three nonfederal projects, or plaintiff’s eventual going-out-of-business, but the subsequent and separate threat of set-offs against payments owing on the FOB and Training School projects. Whatever else those threats may have been, they were in no way violations of the Howard contract, nor were they directly or integrally linked to the Howard default termination. They were, instead, independent acts of the Government directed to the other two federal projects.

Accordingly, defendant is quite right that Count I fails to state any claim at all and must be dismissed in toto. The equitable adjustment which Green is receiving, through the administrative proceedings, is all that it merits with respect to the Howard contract.

FOB contract (Count II): A. Even if the default-termination of the FOB agreement was invalid, Green should have appealed to the GSBCA, just as it sought review of the Howard termination. That was the channel expressly marked out by the contract and it should have been followed. If the FOB termination was improper, an equitable adjustment would be made under that contract which embodied the same default-termination form as the Howard agreement.

Plaintiffs try to avoid this conclusion by a number of arguments which we must reject. The first is that the claim in Count II is not for wrongful termination but for anticipatory breach of the FOB contract, through refusal to make progress payments. This is but a choice of phrasing to camouflage the irrefutable fact that the only detriment which came, or could come, to plaintiffs would be through a wrongful default-termination. Neither claimant suffered harm from the mere threat to withhold payment; neither would have suffered the harm charged from an actual withholding, if that is all there were. The injury could only come if the Government insisted that plaintiffs continued to have obligations under the FOB contract. If, for instance, the GSA had acquiesced (after the set-off threat) in Green’s abandonment of the FOB project, the denial of progress payments would not interfere with performance because there would be no further work to be done or paid for. A failure to issue a default-termination would amount to an acquiescence in abandonment. Cf. Ling-Temco-Vought, Inc. v. United States, 475 F.2d 630, 201 Ct.Cl. - (1973). Thus, it was only the defendant’s insistence, via the default-termination notice, that plaintiffs continued to have obligations under the FOB contract which precipitated any of the harms alleged. That was the heart of the matter.

As in Allied Paint Mfg. Co. v. United States, 470 F.2d 556, 200 Ct.Cl. - (Dec. 1972), the contractor could have attacked the termination, through an appeal to the GSBCA, on the ground that other acts of the Government (i. e., the threats of set-off) excused Green’s failure to proceed. Another comparable case is Nolan Bros., Inc. v. United States, 405 F.2d 1250, 186 Ct.Cl. 602 (1969), in which we held that a convenience-termination subsumed and obviated an independent breach claim for defective design. We pointed out, in words directly applicable to the present case, “If the Government, as it might have done, had terminated the contract for default because plaintiff lagged (on account of the defective specifications) and the default was found excusable (as due to the defendant’s own fault), the termination would be converted, under the default clause, into a convenience-termination * * * ”, with the plaintiff recovering costs incurred plus a measure of profit, but not unearned profits. 405 F.2d at 1253, 1255, 186 Ct.Cl. at 607, 609-610. Plaintiff’s so-called “breach” claim has, in short, no viability independent of the validity of the default-termination, and that could be readily challenged through the “disputes” procedure.

A second of claimant’s positions is that the entire termination-and-disputes remedy was aborted before the default notice. In Nolan Bros., Inc., supra, 405 F.2d at 1255 n. 5, 186 Ct.Cl. at 609 n. 5, we set apart “a case in which the contractor treats a government breach of warranty as ending the entire contractual relationship before the defendant attempts to exercise its right of termination.” Plaintiffs say that that is what happened here — that the whole contract was effectively ended before the default-termination — but their current stance is conclusively refuted by the significant fact that USF & G undertook to complete the FOB project after the termination. If the contract was not subsisting at that time, neither Green nor USF & G would have been under any obligation; the existence of the contract was the essential predicate for the surety’s agreement to complete. As in Nolan, we cannot see the plaintiffs had put an end to, or thought that they had put an end to, the contract before the Government invoked the default clause.

The third point is that the set-off threats constituted a cardinal change, by effectively deleting the progress payment provisions of the FOB contract, and that a cardinal change is redressable only in court, not administratively. See Edward R. Marden Corp. v. United States, 442 F.2d 364, 194 Ct.Cl. 799 (1971). We do not agree that it is a contract change of any kind — cardinal or ordinary — for the Government to set-off against progress payments (let alone merely threatening to set-off) a federal claim on another contract (with the same contractor) which is believed in good faith, but mistakenly, to be valid. This is simply an exercise of the established right of set-off (see United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947); Burlington Northern Inc. v. United States, 462 F.2d 526, 199 Ct.Cl. 143 (July 1972)), which is not transformed into something else because the defendant’s claim turns out later to be without merit.

In any event, and assuming for argument’s sake that the threats of set-off did equal a cardinal change excising the progress-payment provisions, it does not follow that such a “breach” claim would be any different from the “breach” claim in this case for simple violation of the progress-payments clause. As we have pointed out, that claim is swallowed up by the default-termination which was the event causing plaintiffs’ detriment. Violation of the payments article, or even .its deletion, would not have brought about the chain-of-events asserted by Green and USF & G if it were not for the default-termination. From claimants’ viewpoint that was the real villain in the drama, whom they should have pursued on his own scene.

Lastly, we are told that an equitable adjustment of the convenience-termination type does not give full enough relief for the injuries suffered, and therefore plaintiffs should be allowed to seek, through this court, the part of the remedy which the administrative award cannot give them. The answer is that the premise is incorrect. “The only substantial difference between the sum calculated under” equitable adjustment or convenience-termination standards “and the amount recoverable in a common law action for contract breach is the noninclusion in the former of anticipated but unearned profits.” Nolan Bros., Inc. v. United States, supra, 405 F.2d at 1253, 186 Ct.Cl. at 607. This exclusion from relief of unearned profits is a settled policy which has long been accepted and enforced. 405 F.2d at 1254, 1255, 186 Ct.Cl. at 608-609, General Builders Supply Co. v. United States, supra, 409 F.2d at 251, 187 Ct.Cl. at 485-486; G. C. Casebolt Co. v. United States, supra, 421 F.2d at 713, 190 Ct.Cl. at 788. And even in a common-law suit there would be no recovery for general loss of business, the claimed loss of the entire Green net worth, and losses on the non-federal work — such damages are all deemed too remote and consequential. See Ramsey v. United States, 101 F.Supp. 353, 357-358, 121 Ct.Cl. 426, 433-435 (1951), cert. denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952); Dale Constr. Co. v. United States, 168 Ct.Cl. 692, 738 (1964); Specialty Assembly & Packing Co. v. United States, 355 F.2d 554, 567, 568, 174 Ct.Cl. 153, 175 (1966). The conclusion must be that the administrative remedy is, as we have already said, a full and permissible substitute for the award of damages under the former “breach” claim.

Plaintiffs err therefore in seeing themselves as under no duty to proceed administratively. On the contrary, Green should have appealed from the default-termination of the FOB contract and obtained its relief in that fashion.

B. Not unexpectedly, the defendant suggests that, having failed to appeal, Green is now barred forever. We follow, instead, the rule of Zidell Explorations, Inc. v. United States, 427 F.2d 735, 737-738, 192 Ct.Cl. 331, 335-336 (1970), that, if the circumstances warrant, we will give a contractor who has failed to appeal a second chance. The time-limit for appeals to contract appeals boards is not beyond enlargement (Maney Aircraft Parts, Inc. v. United States, 453 F.2d 1260, 197 Ct.Cl. 159 (1972); Monroe M. Tapper & Associates v. United States, 458 F.2d 66, 198 Ct.Cl. 72 (1972)), and the Act of August 29, 1972, Pub.L. No. 92-415, 86 Stat. 652, gives us power to remand to a board “with such direction as it [the court] may deem proper and just.”

To our mind this is a case, like Zidell, in which we should not rigidly hold the contractor to its original decision not to appeal. The three federal contracts were linked in plaintiff’s mind and it may have considered the enlarged recovery it originally sought in the Howard administrative proceedings to be a sufficient method of covering all three determinations. Then, too, plaintiff may well have been misled by its view, still strenuously espoused here, that its claims are entirely “breach” claims for court trial. We referred in Zidell to the great confusion since United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), over which cases properly fall “under the contract” and which are for “breach”. This case is a prime exemplar. Especially since plaintiffs appear to have a valid right to substantial further relief, they should not be eternally punished for their initial mistaken choice of procedure. The case should go to the GSBCA for processing under the default-termination clause of the FOB contract.

C. There has, as yet, been no decision that the termination of the FOB agreement was improper, but we think that on the undisputed facts there is no doubt that it was, and we now so hold as a matter of law since the board could not validly decide otherwise. All must now accept the Howard termination as incorrect; Green was not in default on that project and the default-termination was erroneously made by the contracting officer. There were, accordingly, no liquidated damages and no excess construction costs which could properly be offset against the FOB and Training School contracts. That threats to offset were nevertheless made is undisputed and indisputable. The connection is also clear between those threats and Green’s stopping work on the FOB and Training School projects. Defendant does not even hint that this stoppage was unrelated to, or had some cause other than, the menace of set-off. Nor is there any suggestion that plaintiffs are mistaken when they say they warned the defendant that they would need the progress payments on the two contracts, without substantial diminution. There is, moreover, not the slightest basis for thinking that Green should (or could) have gotten the necessary money from other sources.

It follows, we think, that Green’s refusal to proceed on FOB must now be held to be excused. A serious threat in these circumstances to withhold necessary progress payments because of an erroneous off-set claim on another contract is an act of the Government, not attributable to the contractor, which excuses whatever technical default there may be. Construction contractors cannot be expected to continue working if the Government improperly holds back on substantial interim payments which enable the project to proceed. Cf. Litchfield Mfg. Corp. v. United States, 338 F.2d 94, 167 Ct.Cl. 604 (1964); Pigeon v. United States, 27 Ct.Cl. 167, 175-176 (1892); Overstreet v. United States, 55 Ct.Cl. 154, 173-174 (1920).

D. The equitable adjustment to which Green is entitled under the FOB contract includes, not only the costs it incurred itself before termination, but also USF & G’s excess costs in completing the project. Defendant admits that, when a default-termination is converted to a convenience-termination, the contractor is entitled to any liquidated damages and reprocurement costs paid following the termination. That would include, since the surety stands here in the contractor’s place, USF & G’s unreimbursed excess completion costs, if appropriate and reasonable. Cf. J. D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1320-1327, 197 Ct.Cl. 782, 790-803 (1972). The equitable adjustment called for by the contract is flexible enough to cover that item, to the extent the contractor has incurred such costs as a result of the wrongful termination.

On the other hand, as we have already indicated, USF & G’s costs of completing the three non-federal contracts, and the loss of Green’s net worth, are not proper items for an equitable adjustment under the FOB and Training School contracts.

Training School contract (Count II): What we have said as to the FOB contract controls the Training School agreement. USF & G was not surety for that work and the petition therefore does not ask for recovery of amounts expended by the other surety (which is not a plaintiff here). But if the other surety has a claim, through Green, with respect to completion of the Training School comparable to that of USF & G for completion of FOB, the Training School equitable adjustment should take account of it if presented.

Defendant’s motion to dismiss the petition is fully granted as to Count I, but as to Count II the court makes the following disposition: (a) the petition is dismissed to the extent that a claim for “breach” of the FOB and Training School contracts, triable in court, is stated; (b) the petition is construed as alternatively seeking equitable adjustments under those two contracts; and (c) the request for such equitable adjustment is remanded to the GSBCA under P.L. 92-415, 86 Stat. 652, this opinion, and General Order No. 3 of 1972, for appropriate administrative proceedings. Counsel for the plaintiffs is designated as the responsible reporting attorney under paragraph 9(a) of General Order No. 3.

      . The Howard contract provided that, if the default-termination was erroneous, the contractor would be entitled to an equitable adjustment — the equivalent of treatment as a convenience-termination. See infra.

      . In Allied Paint Mfg. Co., as here, the contractor’s position was that the default-termination was improper because wrongful acts of the GSA in the administration of other contracts adversely affected the claimant’s ability to perform all of its contracts, including those terminated.

      . Plaintiffs complain that in order to obtain relief from the FOB and Training School defaults, they would have to show that the Howard default was improper.— and “only under the Howard University contract could Green obtain the threshold determination (setting aside the Howard default) which was essential to obtaining any relief” under the other two agreements. But there was nothing to prevent Green from asking the GSBOA to suspend proceedings in the FOB and Training School cases to await the Howard determination. That is a very common practice where a significant issue in one matter depends upon the resolution of another case.

      . The FOB and Training School contracts were terminated in 1966. It was not until 1968 that the GSBCA dismissed, from the Howard appeal, the claims relating to the other two contracts. By that time the time for appealing the FOB and Training School defaults had long expired.

      . The cases in which we refused contractors a second choice — Briscoe v. United States, 442 F.2d 953, 966, 194 Ct.Cl. 866, 887-888 (1971); Richardson Camera Co. v. United States, 467 F.2d 491, 199 Ct.Cl. 657 (1972) — presented very different facts and circumstances.

      . The petition reproduces a letter from Green committing it to continue performance on the FOB and Training School contracts provided that GSA agreed not to offset claims unrelated to those two projects.

      . The petition sets forth a pre-termination letter from counsel for USF & G to GSA saying explicitly that “if the Government off-sets its claims arising out of the Howard University contract against funds earned by the Green Company on other contracts, the Green Company will be unable to proceed with work on the contracts not in dispute for lack of funds to pay laborers and materialmen.”

      . Green might have waited until a set-off was actually made, but the GSA’s intention had been made very plain and there apparently was planning and preparation work to do which would be entirely wasted if plaintiffs were not going forward once a set-off was actually made. In the circumstances we do not think Green was compelled to await an actual set-off.

      . See Defendant’s Reply to Plaintiffs’ Response In Opposition to Defendant’s Motion to Dismiss, at 9 n. 6.

      . USF & G has paid all laborers and materialmen, and Green is liable to USF & G for the full amount of the loss suffered in completing the FOB contract.

      . Count II demands, in the alternative, “such other relief as the court may deem appropriate.”


author: KUNZIG, Judge: SKELTON, Judge

text:
    The UNITED STATES v. The ONEIDA NATION OF NEW YORK et al.
    Appeal No. 13-71.
    United States Court of Claims.
    May 11, 1973.

      Marvin S. Chapman, Chicago, Ill., attorney of record, for appellees. Dean A. Dickie and Aaron, Aaron, Schimberg & Hess, Chicago, Ill., of counsel.
    A. Donald Mileur, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzel, for appellant. M. Edward Bander, Washington, D. C., of counsel.
    Before DAVIS, Acting Chief Judge, and SKELTON, NICHOLS, KUNZIG, and BENNETT, Judges.
   KUNZIG, Judge:

In issue in this government appeal from a decision of the Indian Claims Commission (the Commission) is whether the government owed and subsequently breached a fiduciary duty to protect the Oneida Indians in land dealings with the State of New York when the United States Government did not participate in the transactions.

We hold that the federal government did owe a fiduciary duty to the Indians when, with knowledge of the transactions, the Government failed to protect the rights of the Indians. We do not hold that actual federal participation is a prerequisite to the imposition of this fiduciary obligation. To determine whether this duty was breached, the case must be remanded to the Indian Claims Commission for factual findings on the question of scienter on the part of the federal government.

The Oneida Nation seeks, by this action, additional compensation for land which was ceded to the state pursuant to treaties with the State of New York between 1795 and 1846. These claims are based upon clauses 3 and 5 of the Indian Claims Commission Act, 25 U.S.C. § 70a (1970). Clause 3 is inapplicable here because it is expressly limited to transactions between the Indians and the United States Government. The federal government, however, might be liable under clause 5 (fair and honorable dealings) if a “special relationship” is established between the government and the claimant Indians affecting the controverted subject matter. Lipan Apache Tribe v. United States, 180 Ct.Cl. 487, 502 (1967). The Indians’ contention is that the “special relationship” was established by the Trade and Intercourse Act of 1790 which imposed a fiduciary duty upon the federal government regarding Indian land transactions. Accordingly, the Indians now seek recovery under the Indian Claims Commission Act.

The Indian Claims Commission found for the Indians in all twenty-five (25) treaties. We have no difficulty affirming that decision as to the lands ceded pursuant to the Treaty of June 1, 1798 and the Treaty of June 4, 1802, because there were federal government representatives clearly in attendance at these treaty signings. We are faced with greater difficulty with the remaining twenty-three (23) treaties because there was no evidence at trial on the issue of knowledge by the federal government of the transactions transpiring pursuant to these treaties. The Government urges upon this court the position that although the knowledge or notice issue is important, it is unnecessary to reach the issue in this case because there is no “special relationship” or fiduciary duty imposed upon the United States by the Trade and Intercourse Acts arising from sales of New York land to the State of New York by resident Indians. This position we find untenable.

Since the Government seemingly concedes that the Oneidas are entitled to prosecute their claims before the Indian Claims Commission pursuant to 25 U.S. C. § 70a (1970), the sole issue is whether and to what extent a fiduciary relationship exists between the Oneida Nation and the United States pursuant to the Trade and Intercourse Acts.

Between 1785 and 1846 the Oneida Nation and the State of New York were signatories to twenty-seven (27) treaties in which the Indians ceded a vast majority of their land to the state. The Oneida Nation, as found by the Commission, was a tribal member of the Iroquoian Confederacy located along the shores of Oneida Lake in west-central New York. On June 28, 1785, the Oneida Nation joined with the Tusearora Tribe to cede certain lands located in New York to the State of New York. Thereafter, by the terms of the Treaty of 1788, the Indians ceded all of their lands to the State of New York, except for an area of approximately 100 square miles that was reserved for their own use and was to be held by them and their posterity forever (hereinafter referred to as the Oneida Reservation). Between 1795 and 1846, the State of New York entered into a series of twenty-five (25) treaties with the Oneidas whereby the State of New York acquired virtually the entire Oneida Reservation.

I

Fiduciary Duty

There can be no doubt that a fiduciary relationship does exist between the Indians and the United States Government. This was first established by the Trade and Intercourse Act of 1790 which required governmental consent prior to any sale or conveyance of Indian lands. Although there have been revisions of this Act throughout the years, the basic requirement of federal consent in any disposition of Indian lands remains unchanged. Shortly after the enactment of the first Trade and Intercourse Act, President Washington, in a speech to a tribe of New York Indians, clearly defined the intended relationship between the federal government and the Indians:

No State, no person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but it will protect you in all your just rights. . . . But your great object seems to be, the security of your remaining lands; and I have, therefore, upon this point, meant to be sufficiently strong and clear, that, in future, you cannot be defrauded of your lands; that you possess the right to sell and the right of refusing to sell, your lands; that, therefore, the sale of your lands, in future, will depend entirely upon yourselves. But that, when you may find it for your interest to sell any part of your lands, the United States must be present, by their agent, and, will be your security that you shall not be defrauded in the bargain you may make. . . . That, besides the before mentioned security for your land, you will perceive, by the law of Congress for regulating trade and intercourse with the Indian tribes, the fatherly care the United States intend to take of the Indians. (Emphasis added.)

American State Papers (Indian Affairs, Vol. I, 1832), p. 142.

Judicial interpretation of the relationship between the Indians and the federal government has been consistent with President Washington’s statement. The Supreme Court has stated that the purpose of the Trade and Intercourse Act was to avoid improper and unfair disposition of Indian lands and to allow the federal government to act as parens patriae to effectuate this purpose. F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). The Court of Claims has similarly not been shy in holding that the relationship is more than that of a nonparticipating bystander, or of a sovereign toward its ordinary citizens. It is a special relationship necessitating a special responsibility. Oneida Tribe of Indians of Wisconsin v. United States, 165 Ct.Cl. 487, 493, cert. denied, 379 U.S. 946, 85 S.Ct. 441, 13 L.Ed.2d 544 (1964). In Seneca Nation of Indians v. United States, 173 Ct.Cl. 917 (1965) (hereinafter referred to as the second Seneca case) this court went further and stated that:

[t] his responsibility [i. e. that imposed by the Trade and Intercourse Act] was not merely to be present at the negotiations or to prevent actual fraud, deception, or duress alone; improvidence, unfairness, the receipt of an unconscionable consideration would likewise be of federal concern. (Emphasis added.)

Id. at 925.

Therefore we re-affirm previous decisions that held that the Trade and Intercourse Act establishes a fiduciary relationship between the Indians and the United States Government.

II

Applicability of Fiduciary Duty to State Transactions

Despite the foregoing, the Government contends that this fiduciary relationship does not extend to transactions between resident Indians and the State of New York. It is urged that the second Seneca case is distinguishable from the instant case because there, the land transactions did not involve a state, but, rather, were between the Indians and private parties. Accordingly, the appellant argues that the special relationship described in the second Seneca case is limited to dealings between Indians and private parties. We cannot adopt such a narrow reading of the statutory and judicial basis of the fiduciary relationship described by Judge Davis.

Sales to states were expressly prohibited in the original Trade and Intercourse Act itself. Although this language referring to the states was dropped in subsequent Trade and Intercourse Acts, it was replaced by language which forbids any and all purchases from the Indians absent federal governmental consent regardless of the parties. Judicial interpretation reinforces this position. Mr. Justice Whittaker in F.P. C. v. Tuscarora Indian Nation, supra, clearly did not limit the Trade and Intercourse Act to dealings between Indians and private parties. He only excluded dealings with the United States Government itself.

Although Judge Davis did not deem it necessary to reach this issue of the applicability of the Trade and Intercourse Act to transfers to the State of New York in either of the Seneca cases (Seneca Nation of Indians v. United States, 173 Ct.Cl. 912, 915 (1965) and Seneca Nation of Indians v. United States, 173 Ct.Cl. 917 (1965)), his pithy opinions do not preclude a decision favorable to the Indians in this case. There is no compelling reason to draw a distinction between dealings by the Indians with private parties and dealings with the State of New York. President Washington drew no such distinction. The United States Government assumed a responsibility to protect the Indians in all their land transactions. There is no convincing evidence that Congress intended to draw a distinction between private individuals and state governments when they purchased land from Indians. The duty was owed to the Indians regardless of the other party to the transaction. The only logical exception is the one drawn by Mr. Justice Whittaker in F.P. C. v. Tuscarora Indian Nation, supra— the United States Government itself.

We accordingly hold that the Trade and Intercourse Act is applicable to transfers between the Oneida Nation and the State of New York. This conclusion, however, does not automatically lead to complete affirmance of the Indian Claims Commission decision in this case.

Ill

Scienter

The Government’s alternative argument in this case is that it cannot be held to a fiduciary duty for transactions in which it did not participate. The evidence is clear that government representatives were present at only two of the twenty-five (25) treaties in issue in this case. The Government would argue that the absence of participation in the remaining twenty-three (23) treaties releases it from any fiduciary duty that might have existed. Although the Government did not actually participate in the remaining treaties, we hold the fiduciary relationship would continue to exist if the Government had either actual or constructive knowledge of the treaties. With such knowledge, if the Government subsequently failed to. protect the rights of the Indians, then there would be a breach of the fiduciary relationship. This court does not see any distinction between participation and failure to exercise a duty, and knowledge and the failure to exercise the same duty.

At oral argument, attorneys for both parties conceded that the issue of the Government’s knowledge of the transactions between the State of New York and the Oneida Nation was not pursued before the Indian Claims Commission. There is reason to believe that the Government might have known or had reason to know of the New York treaties and did not object to them. Should such be the case, then there would have been a breach of the fiduciary duty as to the twenty-three (23) remaining treaties as there was to the two treaties in which the government agents were in attendance. Since this is a factual question and since we are an appellate court in cases of this nature (Suquamish Tribe of Indians v. United States, 197 Ct.Cl. 775 (1972)), we are compelled to remand this case to the Indian Claims Commission for a determination on the limited issue of the Government’s knowledge (actual or constructive) of the New York treaties.

Accordingly, we affirm the decision of the Indian Claims Commission as it refers to the Treaties of June 1, 1798 and June 4, 1802 and remand the remainder of the case to the Commission to decide the issue of whether the federal government actually knew or can be held to have known of the remaining twenty-three (23) treaties between the Oneida Nation and the State of New York. Affirmed in part; remanded in part.

SKELTON, Judge

(concurring in part and dissenting in part):

I agree with that part of the court’s opinion that affirms the decision of the ICC with reference to the Treaties of June 1, 1798, and June 4, 1802, because representatives of the government were present at the signing of those treaties and the government is deemed to have knowledge of them.

I reluctantly agree to the remand of the remainder of the case to the ICC to determine whether or not the government had any actual knowledge of the remaining 23 treaties at or about the time they were signed, as this was not developed at the trial. The burden was on the plaintiffs to offer proof of this kind and they failed to do so. It is doubtful if they should be given a second chance to introduce evidence of this kind which necessarily will be of ancient vintage if it exists at all. However, I do not agree with that part of footnote 16 that implies that the government “should have known” of the treaties by the possible existence of any of the slight circumstances mentioned in the footnote. I refer particularly to the fact that the government assisted in moving (“removing” as the footnote expresses it) some of the Indians from New York to Wisconsin. This could have been an act of kindness on the part of the government. The Indians could have had many perfectly valid reasons for wanting to go to Wisconsin that were in no way connected with a sale of their land. I do not think that the ICC should be led to believe that this court is of the opinion that the mere assistance of the government in helping the Indians move is sufficient to charge the government with knowledge of the treaties.

Furthermore, in my opinion, a finding that the government “should have known” of the treaties, is not enough to impose liability on the government in the absence of “actual knowledge” on its part. This would actually be a conclusion of law. Knowledge is based on findings of fact, which should be left to the ICC as the fact finding body. I do not think we should tell the Commission what facts to find.

BENNETT, Judge, joins in the foregoing opinion concurring in part and dissenting in part.

      . 26 Ind.Cl.Comm. 138 (1971).

      . Although the initial petition names twenty-seven (27) treaties, two of these, the Treaty of June 28, 1785 and the Treaty of September 22, 1788, are the subject of separate claims since they occurred prior to the enactment in 1790 of the first Trade and Intercourse Act (1 Stat. 137), thus reducing the number of treaties in issue to twenty-five (25).

      . The Indian Claims Commission Act, 25 U.S.C. § 70a (1970), reads in pertinent part:
      “The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after August 13, 1946, shall be considered by the Commission.”

      . The Treaty of June 1, 1798 stated in part:
      PRESENT, Joseph Hopkinson Commissioner appointed under the authority of the United States to hold the Treaty [and] Egbert Benson, Ezra L’Hommedieu and John Taylor Agents for the State of New York. .
      The Treaty of June 4, 1802 stated in part:
      “PRESENT, John Taylor Agent appointed under the authority of the United States to hold the Treaty, and Ezra L’Hommedieu and Simon Dewitt Agents for the State of New York. . . .”

      . The Trade and Intercourse Act of 1790 reads in pertinent part:
      “. . . no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” 1 Stat. 137, 138 (emphasis added).

      . By the Act of March 1, 1793, Sec. 8, 1 Stat. 329, 330, the 1790 Act was amended to read as follows:
      “That no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution; and it shall be a misdemeanor, in any person not employed under the authority of the United States, in negociating [sic] such treaty or convention, punishable by fine not exceeding one thousand dollars, and imprisonment not exceeding twelve months, directly or indirectly to treat with any such Indians, nation or tribe of Indians, for the title or purchase of any lands by them held, or claimed: Provided nevertheless, That it shall be lawful for the agent or agents of any state, who may be present at any treaty, held with Indians under the authority of the United States, in the presence, and with the approbation of the commissioner or commissioners of the United States, appointed to hold the same, to propose to, and adjust with the Indians, the compensation to be made for their claims to lands within such state, which shall be extinguished by the treaty.”
      This version was carried forward, with slight changes, into the Act of May 19, 1796, Sec. 12, 1 Stat. 469, 472; the Act of March 3, 1799, Sec. 12, 1 Stat. 743, 746; the Act of March 30, 1802, Sec. 12, 2 Stat. 139, 143; the Act of June 30, 1834, Sec. 12, 4 Stat. 729, 730; and K.S. § 2116, now 25 U.S.C. § 177.

      . There are two Seneca opinions reported in Vol. 173. The above cited case is the second opinion of the two in the book and is thus known as the “second Seneca” ' case.

      . Supra note 5.

      . “The obvious purpose of that statute [Trade and Intercourse Act] is to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress . . .” 362 U.S. 99, 119, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960).

      . In both of the Seneca cases, Judge Davis refers to the Tuscarora litigation in which two Circuit Courts of Appeals held the Trade and Intercourse Act applicable to condemnations by the state. Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2nd Cir. 1958), cert. denied, 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76, appeal dismissed, 362 U.S. 608, 80 S.Ct. 960, 4 L.Ed.2d 1009 (1960); Tuscarora Indian Nation v. Federal Power Comm’n, 105 U.S.App.D.C. 146, 265 F.2d 338, 339 (1958), rev’d on other grounds, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960).

      . Supra, note 4.

      . It was not necessary for the court to reach this point in either of the Seneca decisions. In the first, 173 Ct.Cl. 912 (1965), the decision rested on “narrower footings” ; in the second, 173 Ct.Cl. 917 (1965), there was actual government participation.

      . The mere presence of a government agent at a treaty signing might have, in fact, conveyed less knowledge to the Government about the transactions than knowledge acquired by other means.

      . Gunther, Governmental Power and New York Indian Lands — A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L.Rev. 1, 6 (1958).

      . It should be noted that the Indian Claims Commission has yet to determine the issue of conscionability with regard to all of the treaties in this ease.

      . It is not difficult to contemplate possible items which could be construed as imposing constructive knowledge upon the Government. For example: the possibilities that the treaties were registered with some government agency; that there was pertinent correspondence relating to the treaties; that the treaties were reflected in federal land maps; that the treaties altered the state land tax structures which might have been reflected in federal government statistics; that the seat of the Government being in New York itself imposed knowledge; and other similar items. Finally, it was also suggested at oral argument that the United States Government actually assisted in the subsequent removal of these Indians to the State of Wisconsin. If this be the case, then it could be assumed that someone in the federal bureaucracy knew why the Indians were moving, i. e. the sale of their lands to the State of New York.


text:
    60 CCPA
    ELLIS SILVER CO., INC., Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 5494.
    United States Court of Customs and Patent Appeals.
    May 17, 1973.
    Lane, Young & Fox, New York City, attorneys of record, for appellant. James G. MeGoldrick, New York City, of counsel.
    Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Washington, D. C., John N. Politis for the U. S.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This appeal is from the decision and judgment of the United States Customs Court, Third Division, Appellate Term, 67 Cust.Ct. 564, A.R.D. 293 (1971), affirming the decision and judgment of the single judge, 63 Cust.Ct. 647, R.D. 11688, 308 F.Supp. 704 (1969), in a reappraisement proceeding involving the proper dutiable value of certain silverplated hollowware exported from England. Appraisement on the basis of constructed value under section 402(d) of the Tariff Act of 1930, as amended, was sustained on the ground that appellant had failed to establish that the prices paid fairly reflected market value of the goods and thus had not proven the correctness of the claimed basis of export value under section 402(b), as amended.

Finding no reversible error below, we affirm the judgment of the Appellate Term of the Customs Court.

Affirmed.