author: CHAMBERS, Circuit Judge:

text:
    Paul VARO et al., Plaintiffs-Appellants, v. COMPREHENSIVE DESIGNERS, INC., et al., Defendants-Appellees. Richard M. STUCKER et al., Plaintiffs-Appellants, v. COMPREHENSIVE DESIGNERS, INC., et al., Defendants-Appellees.
    Nos. 73-1214, 73-1215.
    United States Court of Appeals, Ninth Circuit.
    Oct. 3, 1974.
    Gary H. Wiles (argued), La Jolla, Cal., for plaintiffs-appellants.
    • Wallace R. Peck, of Jennings, Eng-strand & Henrikson, San Diego, Cal., for defendants-appellees.
   OPINION

Before CHAMBERS AND GOODWIN, Circuit Judges, and KELLEHER District Judge.

CHAMBERS, Circuit Judge:

In the separate complaints of the plaintiffs, Varo and Stucker (franchisees), they assert anti-trust violations under the Sherman Act (15 U.S.C. §§ 1-7) against the defendant, franchis- or, in two counts.

The third count in each addresses itself to fraud in the inducement. If only the third count were involved, it should go to arbitration as provided in the basic agreements. The first two counts are pending and open. The district court has stayed the proceedings before it and ordered the parties to arbitrate the fraud count of each. Plaintiffs have appealed.

At the threshold, we are confronted with the contention that the order staying the suit is not appealable. We conclude it is. However, we do not pause to attempt to prove our views because we think that the situation is such on the record here that were we to hold that the order denying the stay was un-appealable, we should take the extraordinary step of converting the appeal into mandamus or prohibition, ordinarily something to be done stingily. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 779 (9th Cir. 1950). Also, we could request the district court to proceed under 28 U.S.C. § 1292(b), an interlocutory appeal. We conclude only that the possibility of plaintiffs prevailing on their anti-trust counts is so strong that arbitration should be stayed pending the outcome of the legality issues.

In our view, the pleaded documents make a prima facie case of running counter to the Sherman Act, a situation perhaps approached in Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957). This does not mean there can be no defenses and we do not make an ultimate ruling on the legality of the arrangement. We simply hold that we have seen enough to believe plaintiffs’ chances on illegality are so strong that arbitration should be stayed pending final resolution of the illegality issues. It is rare that much of the anti-trust charges tentatively appear vindicated on the surface. Uusally they have to be found under the covers.

In view of the circumstances, we order the arbitration stayed pending further order of the district court. The district court will know our wishes in the matter and it may desire to tidy up our order. It may do so.

The stay is effective forthwith, but petitions for rehearing may be filed within the normal time. And, of course, our action will not foreclose petitions for certiorari.

The district court, pending the final outcome, should vacate its order, including its finding that there was a valid contract. The district court should now proceed with the anti-trust counts.

Remanded for proceedings consistent herewith.

       The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.

      . Cobb v. Lewis, 488 F.2d 41, 46 (5th Cir. 1974) ; A. & E. Plastik Pak Co. v. Monsanto Company, 396 F.2d 710, 713 (9th Cir. 1968) ; American Safety Equipment Corp. v. J. P. Maguire & Co., 391 F.2d 821, 824-825 (2d Cir. 1968).
      Our recent decision in Danford v. Schwa-bacher, 488 F.2d 454 (9th Cir. 1974), does not undermine the force of these cases. Danford simply laid down a rule of choice in situations where the underlying cause of action defied classification as either legal or equitable for purposes of the Enelow-Ettel-son rule. Here, the fraudulent inducement claim sounds primarily in law rather than equity. Furthermore, the arbitration relief sought here is. classified as an equitable defense. Danford v. Schwabacher, supra, at 456. The order is thus appealable.

      . See Ring v. Spina, 148 F.2d 647, 650, 654 (2d Cir. 1945). Compare A. & E. Plastik Pak Co. v. Monsanto Company, 396 F.2d 710, 716 (9th Cir. 1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bert Leroy HUNTER, Appellant, v. Harold R. SWENSON, Warden, Appellee.
    No. 74-1261.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1974.
    Decided Oct. 24, 1974.

      Thomas M. Larson, Asst. Public Defender, Kansas City, Mo., for appellant.
    Dave Robards, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

The sole issue raised in petitioner’s appeal from denial of his petition for habeas corpus is whether or not a confession used at his first degree murder trial was involuntary. He alleges that it was induced by false representations on the part of interrogating state authorities that the prosecutor would consider filing a lesser charge in exchange for a confession. His application for habeas corpus was previously reviewed by this Court and the case was remanded for an evidentiary hearing because the Court believed that the District Court may have based its original denial on an incorrect determination that the interrogation had included absolutely no discussion of a possible “deal.” Hunter v. Swenson, 442 F.2d 625 (8th Cir. 1971).

After holding an evidentiary hearing, Judge Collinson denied relief, Hunter v. Swenson, 372 F.Supp. 287 (W.D.Mo.1974), finding that the petitioner knowingly and intentionally waived his Fifth and Sixth Amendment rights. Id. at 297. He also held that the confession was voluntary, based on the following findings: (1) that “no express or implied promise of leniency was ever made to Hunter,” id. at 298; (2) that “Hunter did not reasonably believe that a promise of leniency had been made to him,” id. at 299; and (3) that “Hunter’s statement was not induced by [any such] promise or belief in a ‘but for’ sense,” id. at 300. After reviewing the record, we do not believe that these finding's are clearly erroneous, and, therefore, affirm for the reasons stated by Judge Collinson. For an analogous case, see, United States v. Johnson, 466 F.2d 1210 (8th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 974, 35 L.Ed.2d 279 (1973).

In light of our affirmance on these grounds, we find it unnecessary to reach a conclusion as to the propriety of a fourth ground given by the District Court: that, even if the confession was based on a promise of leniency, it was admissible as it was not coerced. Hunter v. Swenson, supra, 372 F.Supp. at 300. We have misgivings about this theory. The case cited by the District Court to support it, Santobello v. New York, 404 U.S. 257, 261-262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), involved a guilty plea in exchange for a promise of leniency which was not kept. There, the Supreme Court remanded for a granting of specific performance of the promise or, in the alternative, withdrawal of the plea. Although a guilty plea and a confession may not be subject to precisely the same standards — a question which we do not decide — surely that ease does not support the theory that a confession based upon a broken promise of leniency is admissible if uncoerced. Indeed, it expressly held that

* * * when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Id. at 262, 92 S.Ct. at 499. Cf. United States v. Gallington, 488 F.2d 637, 640 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). A similar rule was applied to require exclusion of a confession based on a false promise of leniency in Grades v. Boles, 398 F.2d 409 (4th Cir. 1968). And Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), stands for the proposition that “[a] confession can never be received in evidence where the prisoner has been influenced by any threat or promise * *

It is because we cannot disagree with the District Court’s findings that there were no promises and that petitioner did not believe that there were promises of leniency, that we affirm.


text:
    UNITED STATES of America, Appellee, v. Michael PELLICCI, Defendant-Appellant.
    No. 74-1201.
    United States Court of Appeals, First Circuit.
    Heard Sept. 6, 1974.
    Decided Oct. 24, 1974.
    Certiorari Denied Jan. 20, 1975.
    See 95 S.Ct. 805.
    Joseph J. Balliro, Boston, Mass., for appellant.
    Robert Henry Plaxico, Atty., Dept, of Justice, Washington, D.C., with whom James N. Gabriel, U.S. Atty., Joel M. Friedman, Sp. Atty., Dept, of Justice, Boston, Mass., and Peter M. Shannon, Jr., Atty., Dept, of .Justice, Washington, D.C., were on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and CLARY, Senior District Judge.

       Sitting by designation.

   PER CURIAM.

The appellant was convicted of conducting an illegal gambling enterprise, and appeals on the ground that his motion to suppress evidence obtained through electronic surveillance was improperly denied. The interception of appellant’s wire and oral communications had been authorized by a district judge upon application by the government, and the substance of the appeal is the contention that the application was not approved by the Attorney General or his designate as required by 18 U.S.C. § 2516(1).

Appellant first argues that the application was not in compliance with the statute because it was based upon the authority of Robert H. Bork, Acting Attorney General, rather than upon the authority of an “Attorney General”. Section 2516(1) provides that “The Attorney General, or any Assistant Attorney General specifically designated by the Attorney General” may authorize an application. The Attorney General and the Deputy Attorney General having resigned, Bork designated “the Assistant Attorney General in charge of the Criminal Division.”

In our view the dispositive statute is 28 U.S.C. § 508(b). Section 508(b) provides that when the offices of Attorney General and Deputy Attorney General are vacant, and in the case of absence or disability, the Assistant Attorneys General and the Solicitor General “shall act as Attorney General”, with the order of their succession determined by departmental regulation. The regulation in force at the time relevant to this case called for the Solicitor General to succeed the Deputy Attorney General. 28 C.F.R. § 0.132(a). Appellant attempts to distinguish the wording of § 508(b) from that of § 508(a), which provides that when there is a vacancy in the office of Attorney General, the Deputy “may exercise all the duties of that office”.

There is no basis for concluding that one “acting” as Attorney General has fewer than all the powers of that office. The two subsections of § 508 are not parallel in structure, so the fact that “all” appears in one formulation and not in the other is without import. In reaching this conclusion we also take note of 28 C.F.R. § 0.132(a), which directs that when the offices of Attorney General and Deputy are vacant “the Solicitor General shall perform the functions and duties of and act as Attorney General.” The untenable nature of the argument made by appellant becomes apparent in light of the realization that, if accepted, it would place this court in the impossible position of trying to determine which powers Bork succeeded to and which he did not. Appellant argues that just because Congress took care in § 2516(1) to assign a power specifically to the Attorney General, this is one of the powers Bork did not have. The assumption is apparently that an “acting” Attorney General is vested only with powers not specifically assigned to the Attorney General. Not only would such a concept sharply circumscribe the powers of an official intended by Congress to be a complete substitute for an Attorney General, but there would be no principled basis upon which to effect a division of the powers of the office.

Since we have determined that a Solicitor General acting as Attorney General has no less authority than a Deputy Attorney General who is an Acting Attorney General, the conclusion which we have set out above also draws support from those cases which have held that Richard Kleindienst, a Deputy who was Acting Attorney General, could lawfully authorize applications under § 2516. United States v. Lucido, 373 F.Supp. 1142, 1145 (E.D.Mich.1974); United States v. Curreri, 363 F.Supp. 430, 434 (D.Md.1973).

Appellant’s second argument is that even if Bork was empowered to designate under § 2516, the purported designation was not made in the manner required. Specifically, the contention is that the designation of “the Assistant Attorney General in charge of the Criminal Division”, omitting the name of the individual holding that office, was impermissibly imprecise. But the designation of a single person accomplished by job title rather than by name does not run afoul of the legislative intent, recognized in United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), that the authority to approve applications be both narrowly confined and limited to those responsive to the political process. And the fact that Henry E. Petersen, who authorized the application, was by precise title the “Assistant Attorney General of the Criminal Division” in no way calls into question his identity as the individual whom Bork intended to designate.

Affirmed.


author: OPINION ON REMAND PER CURIAM:

text:
    In the Matter of George Walter Kingswood and Gerd Kingswood, Bankrupts. George Walter KINGSWOOD and Gerd Kingswood, Appellants, v. Carlyle MICHELMAN, Trustee-Appellee.
    No. 72-2100.
    United States Court of Appeals, Ninth Circuit.
    Oct. 17, 1974.
    Stephen R. Wolfson (argued), Moneymaker & Wolfson, Los Angeles, Cal., for appellants.
    Joel K. Mithers (argued), Los Ange-les, Cal., for trustee-appellee.
    Before BARNES, KOELSCH and ELY, Circuit Judges.
   OPINION ON REMAND

PER CURIAM:

Our original opinion in the subject cause is reported at 470 F.2d 996 (case 2) (9th Cir. 1972). We based our brief reversing opinion upon the opinion of a District Court in a similar case, thought by us to be well reasoned. In re Cedor, 337 F.Supp. 1103 (N.D.Cal.), aff’d 470 F.2d 996 (case 1) (9th Cir. 1972).

The Supreme Court has now reversed our opinion. Michelman, Trustee, etc. v. Kingswood, 418 U.S. 902, 94 S.Ct. 3191, 41 L.Ed.2d 1150 (1974). The Supreme Court’s mandate has now been received by our court and recites that the cause “is hereby, remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, . . . .” 41 L.Ed.2d 374 (1974).

We think that the District Court should be allowed the first opportunity for the further consideration required by the Supreme Court. Accordingly, the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings not inconsistent with Kokoszka v. Belford, supra.


author: JAMES M. CARTER, Circuit Judge:

text:
    Thomas H. McMULLEN, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 73-1387.
    United States Court of Appeals, Ninth Circuit.
    Nov. 12, 1974.
    William A. Fazio, Lawton, Christensen, Fazio, McDonnell & Briggs, La Habra, Cal., for plaintiff-appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for defendants-appellees.
    Before CARTER, TRASK and GOODWIN, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

The judgment below is affirmed on the basis of McMullen v. United States, 349 F.Supp. 1348 (C.D.Cal., 1972).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence JACKSON, Defendant-Appellant.
    No. 935, Docket 74-1439.
    United States Court of Appeals, Second Circuit.
    Argued July 15, 1974.
    Decided Oct. 29, 1974.
    Robert H. Kiernan, New York City (Lenefsky, Gallina, Mass & Hoffman and Jeffrey C. Hoffman, New York City, of counsel), for defendant-appellant.
    Paul B. Bergman, Asst. U. S. Atty., New York City (David G. Trager, U. S. Atty., James R. Watson, Asst. U. S. Atty. and Harry C. Batchelder, Sp. Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellee.
    Before WINTER  and MULLIGAN, Circuit Judges, and NEWMAN, District Judge.

       Of the United States Court of Appeals for the Fourth Circuit, sitting by designation.

         Of the United States District Court for the District of Connecticut, sitting by designation.

   PER CURIAM:

Convicted of knowingly and intentionally making a false material declaration before a special grand jury on December 13, 1972, in violation of 18 U.S.C. § 1623, defendant appeals assigning as error (1) that the government failed to establish the materiality of the allegedly false declaration and (2) that rulings of the district court unduly and prejudicially restricted his right to put into evidence relevant portions of the transcript of the grand jury proceeding out of which the accusation against him arose. Defendant also advances contentions that the prosecutor’s summation infringed defendant’s fifth amendment right not to testify and that the sentence imposed on him was excessive.

During argument counsel for the government was interrogated about a possible variance between the indictment and the government’s proof, an issue not briefed, and leave was granted the government to supplement its views on this aspect of the case. In exercise of this permission, the government has advised us that it has reconsidered its entire position in the case, that it confesses error in the exclusion of all of the grand jury testimony sought to be presented by defendant as urged by the government at trial, that such error is reversible error, and that defendant should be granted a new trial at which the government expects to make a more persuasive demonstration of the materiality of the alleged untruths.

We accept the government’s concession; and it obviates the necessity of further discussion of the issues. Accordingly the judgment entered on the conviction is reversed and the cause remanded for a new trial. We intimate no views as to the admissibility of the entire grand jury transcript. Rather the district court shall rule on the admissibility of the portions offered in light of the government’s changed position, the rules of evidence and its sound discretion.

Reversed with new trial.


text:
    Robert H. LIVINGSTON et al., Appellants, v. TITLE INSURANCE COMPANY OF MINNESOTA, Appellee.
    No. 74-1303.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1974.
    Decided Nov. 12, 1974.
    Jerome Kalishman, Blumenfeld, Kal-ishman, Marx, Tureen & Paster, Clayton, Mo., for appellants.
    Robert C. Jones, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

This is a timely appeal by plaintiffs from final judgment dismissing their petition for damages for breach of defendant’s title certificate. The facts, the issues and the basis of decision are fully stated in Judge Harper’s well-reasoned opinion. Livingston v. Title Insurance Company of Minnesota, 373 F.Supp. 1185 (E.D.Mo.1974). Our examination of the record and briefs satisfies us that the trial court’s decision is supported by substantial evidence and is not induced by any erroneous view of. the law. We affirm upon the basis of the trial court’s reported opinion.

Affirmed.


text:
    John D. McCONNELL, Petitioner-Appellant, v. George E. BARKER, Respondent-Appellee.
    No. 74r-1732.
    United States Court of Appeals, Sixth Circuit.
    Nov. 8, 1974.
    John D. McConnell, pro se.
    John M. Famularo, Asst. Commonwealth Atty., Lexington, Ky., for respondent-appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   ORDER

In this case, in which petitioner-appellant has attempted to perfect an appeal from an order of the district court denying his application for a writ of habe-as corpus, has come on for consideration pursuant to Rule 3(e), Rules of the Sixth Circuit. It appearing that no timely notice of appeal was filed directed to the final order of the district court, and that although advised of his right under Rule 4(a), Federal Rules of Appellate Procedure, no motion for permission to file a belated notice of appeal was filed within sixty days of the entry of said final order, it is concluded that this Court is without jurisdiction, and accordingly,

It is ordered that this appeal be and it hereby is dismissed.


author: GEE, Circuit Judge:

text:
    Hector S. AMAYA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Respondent-Appellee.
    No. 72-3142.
    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1974.
    Roland C. Anderson, Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex. (Court-appointed), for petitioner-appellant.
    Alfred C. Aman, Jr., Georgia, Ga., for Jesus Rolon Marxauch, et al., amicus curiae.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

Our earlier decision herein having .been vacated, 418 U.S. 902, 94 S.Ct. 3191, 41 L.Ed.2d 1151, and the cause remanded to us for further consideration in light of Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), we find this cause controlled by it.

Affirmed.

      . 486 F.2d 940 (5th Cir. 1973).


author: NICHOLS, Judge.

text:
    Paul HILKOVSKY, et al., v. The UNITED STATES; Leland S. MURPHY, Sr., v. The UNITED STATES (two cases).
    Nos. 854-71, 856-71 and 857-71.
    United States Court of Claims.
    Oct. 23, 1974.
    William J. Turner, San Francisco, Cal., for plaintiff. Jess S. Jackson, Jr., Bur-lingame, Cal., attorney of record.
    David W. Miller, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant.
    Before DURFEE, Senior Judge, and NICHOLS and BENNETT, Judges.
   ON PLAINTIFFS’ MOTION AND DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

On December 3, 1971, plaintiffs holding various interests in six tracts of land within the outer boundaries of the Point Reyes National Seashore in Marin County, California, north of San Francisco, filed suits alleging taking of these lands by the United States. Such suits are said to be for “inverse condemnation” as they differ from ordinary land condemnations wherein the Government is the plaintiff. Jurisdiction is based upon the Fifth Amendment just compensation clause and 28 U.S.C. § 1491. On appropriate motions the six cases were consolidated on August 17, 1972, and heard together by the court on cross motions for summary judgment as the liability for taking and, in the event that takings were found, on cross motions for summary judgment on liability for the use thereof by plaintiffs after such taking by the United States.

At oral argument in June 1974, counsel for plaintiffs announced the settlement of three of the suits, all involving the three neighboring tracts on the Inverness Ridge. The settled suits are No. 853-71, Brenner v. United States, No. 855-71, Mitchell v. United States, and No. 858-71, Williams v. United States. Stipulations of dismissal are on file in all three of those cases, showing that they are dismissed with prejudice in view of the settlement of cases on file in the Northern District of California in which the United States condemned the corresponding parcels.

Still in dispute are the three small tracts enclosed by Tract 02-109, which is now owned by the United States and leased back to Leland S. Murphy, Sr., under a Special Use Permit for his cattle ranching. At the time plaintiff Murphy conveyed Tract 02 — 109 to the United States in exchange for other Government land near San Diego, he reserved the the tracts now in dispute from the deed for Tract 02-109. The first of the three disputed tracts is Tract 02-141, Home Ranch (owned by Drakes Bay Hereford Ranch, Inc., of which Leland S. Murphy, Sr., is sole owner), which houses the headquarters for plaintiff Murphy’s ranch operations and which is split by the Murphy Ranch access road. Nearby Home Ranch is the second of the disputed tracts, Tract 02-142, Duck Club (owned by Hilkovsky, et al., with a reserved security interest in Leland S. Murphy, Sr.). Access to the Duck Club is by the Murphy Ranch road. The third tract in dispute is Tract 02-143, Sunset Beach, still owned directly by plaintiff Leland S. Murphy, Sr. Sunset Beach is the only waterfront property of the six tracts, fronting on the Estero De Limantour (Limantour estuary), which opens into Drakes Bay. Access is by way of Balboa Road which connects with the Murphy Ranch road. Defendant has suits in the United States District Court to condemn these tracts, but without any Declarations of Taking. 40 U.S.C. § 257 and § 258a.

The first issue is plaintiffs’ reliance on collateral estoppel to establish United States’ liability for taking, based upon Drakes Bay Land Co. v. United States, 424 F.2d 574, 191 Ct.Cl. 389 (1970); and the proceeding to determine amount of recovery, 459 F.2d 504, 198 Ct.Cl. 506, (1972). A reading of these decisions will show we recognized that Congress intended the normal situation to be that defendant would year by year use appropriated funds to purchase or condemn lands within the National Seashore as laid out by Congress (16 U.S.C. § 459 c — 1 (1970)) or else exchange Government land outside the area for desired land inside. The mere description of the intended National Seashore by meets and boundaries in the same statute did not effect a taking by itself. Landowners normally would have to wait for the Government to get around to them. We held the Government had overreached in the case of the Drakes Bay Land Co., tract and incurred Fifth Amendment just compensation liability as of an earlier date than it had intended, because of a special combination of circumstances. Some were applicable to all landowners in the future National Seashore, but others were peculiar to that one tract.

The Supreme Court in Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), held, contrary to previous patent law, that a person may invoke collateral estoppel by a previous decision to which he was not a party in certain circumstances. These were that a patentee had sued for infringement but elicited a decision that its patent was invalid. This holding was held collateral estoppel against it in suits against other infringers, subject to certain qualifications. The collateral estoppel related to defects in an item of property necessarily the same in the prior and subsequent suits, the patent. Whether a like collateral estoppel could arise with respect to different items of property, i. e., two or more tracts of land, and as a matter of offense, not defense, requires a change in the Federal law beyond the one the Supreme Court has made in Blonder-Tongue. We would hesitate to make it even if the case were better than it is in other respects. The law of the State is not relevant. See, Blonder-Tongue, fn. 12 at 324, 91 S.Ct. 1434.

Lower courts that have dealt with the problem of mutuality of estoppel have established other requirements to be met before these courts have disregarded the lack of mutuality of estoppel. In Schwartz v. Public Administrator of the County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969), the New York Coui't of Appeals established two requirements: (1) Identity of issues in both trials; and (2) Full and fair contest of the issue in the prior litigation. In determining whether a full and fair contest had occurred, several factors were listed: a) size of the respective claims; b) limitations of the prior forum; c) use of initiative to fully litigate and appeal the prior litigation; d) competence and experience of counsel in the prior litigation; e) availability of new evidence; f) indications of a compromise verdict in the prior litigation; g) difference in law between suits; and h) foreseeability of future litigation in the prior suit. Additional factors annotated elsewhere (31 A.L.R.3d 1052-1054) include whether (i) party claiming estoppel uses it offensively or defensively; (ii) fairness to parties; (iii) the avoidance of anomalous results by the use of estoppel; (iv) the presence or absence of sound reasons to deny estoppel; (v) the nature of the issue as one tried to judge or jury; (vi) the relationship of the stranger to the estoppel to the party who established the issue in the prior litigation; and (vii) the need to end litigation.

In this case plaintiffs fail everybody’s first test — identity of issue. By plaintiffs’ own admissions at oral argument: A. different, non-adjoining tracts of land are involved; B. the alleged taking dates are different (1963 for Drakes Bay Land Co., some unidentified subsequent date for plaintiffs’ lands); C. the use of the lands are different (plaintiffs admit that it is uneconomical for them to subdivide their small plots of land, whereas in Drakes Bay Land Co., we held that the Government taking resulted from defendant’s deliberate interference with Drakes Bay Land Co. subdivision efforts); and D. the access road situation is significantly improved (plaintiffs now enjoy a Park Service public access road whereas in Drakes Bay Land Co., blockage of public road access by defendant was a key factor in determining taking by the United States). Thus plaintiffs fail to meet the collateral estoppel requirements stated by Blonder-Tongue and Schwartz and by this court in United States v. Northern Paiute Nation, 490 F.2d 954, 203 Ct.Cl. 468 (1974).

Plaintiffs’ claim of collateral estoppel based on Drakes Bay Land Co., also fails because the six-year statute of limitations (28 U.S.C. § 2501) on the collateral estoppel theory started to run on the date of taking in Drakes Bay Land Co., and had expired before plaintiffs filed their suits on December 3, 1971. United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), relied upon by plaintiffs to extend the statute of limitations, is not applicable to the facts of this case under the limitations on the Dickinson holding made by United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). Justice Harlan in the Dow case distinguished the flooding situation in Dickinson from other types of Government taking because, in the slow flooding situation in Dickinson, the full extent of the Government taking could not be known until the high water mark of the flooding had been reached. Here, because there has never been any doubt as to the Government intent to take the full interest of plaintiffs in their land, either by purchase, transfer, or condemnation, as directed by Congress, there is no reason to apply the Dickinson wait- and-see-how-much-is-taken rule. Neither party alleges that the Government was taking the plaintiffs' lands inch-by-inch, over several years as happened in Dickinson. Either the lands have been taken entirely or they have not been taken at all.

Even within the six-year period of the statute of limitations, December 3, 1965 to December 3, 1971, plaintiffs have failed to establish any taking of their lands. Defendant has shown and plaintiffs have not denied that plaintiffs used and enjoyed their lands up to the filing of these suits in the same manner that they had always used and enjoyed these lands. Home Ranch always was the headquarters of plaintiff’s ranching operations. Sunset Beach remains, as plaintiff long used it, a vacant piece' of land used in plaintiff’s cattle ranching operations. Finally, plaintiffs, who formed the Duck Club during the midst of the Government acquisition efforts, have not shown any direct Government interference with such use of the land. Plaintiffs’ only complaint of Government taking is the length of time that the Government has been buying, trading for, or condemning theirs and others’ lands within the boundaries of the National Seashore, but that is not enough.

' Therefore, since the affidavits and depositions submitted in this case establish no material issue of fact for the period ending December 3, 1971, since plaintiffs have failed to prove specific facts required to establish a Government taking of their lands during the period between December 3, 1965 and December 3, 1971, since plaintiffs have incorrectly alleged collateral estoppel, and since the statute of limitations bars all claims of defendant’s taking of plaintiffs’ lands prior to December 3, 1965, summary judgment for defendant on the issue of liability for taking of plaintiffs’ lands for the period ending December 3, 1971, is appropriate and will issue under Rule 101(f). Concomitantly, since the court finds no taking of plaintiffs’ lands as alleged by plaintiffs, summary judgment will issue for plaintiffs on defendant’s counterclaim for liability for the use of Government lands for the same period ending December 3, 1971. Judgment and dismissal of these cases are without prejudice to present or future condemnation or taking actions involving any or all of the same tracts of land, alleging dates of taking subsequent to December 3, 1971. The defendant’s motion to dismiss is granted, and the petitions and counterclaims are dismissed.


author: DAVIS, Judge.

text:
    KEYDATA CORPORATION v. The UNITED STATES.
    No. 299-72.
    United States Court of Claims.
    Oct. 23, 1974.

      Harold Baer, Jr., New York City, attorney of record for plaintiff. Howard B. Weinreich, New York City, and Gug-genheimer & Untermyer, New York City, of counsel.
    John E. Lindskold, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for defendant.
    Before DAVIS, NICHOLS, and BENNETT, Judges.
   ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge.

In 1968, Keydata Corporation and the National Aeronautics and Space Administration (NASA) were both leasing space at 575 Technology Square, Cambridge, Massachusetts, an office building owned by the Wyman Street Trust. Early in that year NASA decided to expand its footage in the structure, and at the same time Keydata was seeking to move to larger quarters in another location. After negotiations in which NASA was represented by the General Services Administration (GSA), an agreement was reached as to NASA’s rental of Keydata’s 2,093 square foot computer room on the first floor (and also other rental space, not now involved). The agreement was embodied in two lease amendments, one between Keydata and Wyman, the other between the Government and Wyman. These modifications provided that Keydata would surrender possession of the computer room, and the Government would lease it (from Wyman), either on October 1, 1968 or on a date mutually agreeable to Keydata and the Government (with advance notice to Wyman) between August 1, 1968 and January 1, 1969.

The amendments also provided separately for the sale of certain fixtures. The Government promised to pay Wy-man $39,000 for air conditioning equipment which Keydata had installed in the computer room, and Wyman obliged itself in the same amount in payment to Keydata. These improvements had been installed by Keydata with Wyman’s consent, and the tenant retained the right to remove the equipment so long as the premises were returned to their original condition.

The two lease amendments summarized above were executed on March 11, 1968. Keydata and the Government later selected the January 1, 1969 move-in date, by using the mechanism set up in the lease-cum-amendments. There were subsequent exchanges between the parties concerning the move-in date; what was said is a matter of dispute, but it is not now necessary to examine that history. In any event, both parties agree that Keydata had not vacated by January 1, 1969, and that on the next day GSA sent Keydata a letter informing it “that the Government hereby cancels the proposed acquisition of 2093 square feet on the first floor at 575 Technology Square, as hitherto provided for under Amendment No. 7 to the above referred to lease. This action is necessary because of the fact that the space above referred to was not available for Government occupancy on January 1, 1969 * * *.” The Government did not pay the $39,000 due under the agreements for the computer room improvements.

When the Wyman Street Trust refused to take action to collect this sum from the Government, Keydata brought suit against the Trust and its trustees in the Superior Court of the County of Suffolk, Massachusetts. Tried on the pleadings and a stipulation of facts, that action resulted in an order requiring the Wyman Street Trust tó assign its rights to the $39,000 under the lease amendment to Keydata, and such an assignment was executed on April 21, 1971. Keydata sues here in place of Wyman and as its assignee.

This suit involves two causes of action. The theory of the first is that Wyman fully performed its obligations as landlord under Massachusetts and federal law, therefore the Government’s recission was illegal, and the United States now owes the $39,000. The second cause of action claims that in any case the conduct of the Government’s agents constituted a waiver of any obligation on the part of Keydata to vacate by January 1, and that the defendant is estopped from so contending. Both parties have moved for summary judgment, the plaintiff as to its first claim only.

I

Defendant asks for summary judgment on both claims, urging as one ground that Wyman’s assignment of its rights to Keydata violated the Assignment of Claims Act, 31 U.S.C. § 203 (1970), and is therefore void.

Despite the broad language of the Act, and the courts’ tendency at an earlier time to read it as an all-inclusive prohibition, numerous classes of assignments, although literally within the statutory ambit, have been judicially exempted from its operation. The largest category of excised assignments are those which, in one form or another, occur by operation of law. Various such assignments which are regularly held to be unaffected by the Act include the passage of claims to heirs and devisees (Erwin v. United States, 97 U.S. 392, 397, 24 L.Ed. 1065 (1878)), transfers made incident to proceedings in bankruptcy or receivership (Segal v. Rochelle, 336 F.2d 298, 302 (C.A.5, 1964), aff’d 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966); Danielson v. United States, 416 F.2d 408, 410 (C.A.9, 1969); New Rawson Corp. v. United States, 55 F.Supp. 291, 293 (D.Mass.1943)), transfers by the succession of one business entity for another (Consumers Ice Co. v. United States, 475 F.2d 1161, 1163, 201 Ct.Cl. 116, 119 (1973)), assignments made by judicial sale or order (Price v. Forrest, 173 U.S. 410, 419-425, 19 S.Ct. 434, 43 L.Ed. 749 (1899); 36 Comp.Gen. 157, 158 (1956)), and assignments produced by operation of the law of subro-gation (United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 376, 70 S.Ct. 207, 94 L.Ed. 171 (1949)). These classes of assignments are all thought to be outside the statute’s scope because none of them threatens the dangers Congress sought to avoid by enacting the prohibition.

Within the past decade this court has once again explained the objectives of the Assignment of Claims Act:

The prohibitory language contained in the first paragraph of the statute above dates back in essentially its present form to 1853 (10 Stat. 170, Rev.Stat. § 3477 (1875)), and originally to an 1846 statute (9 Stat. 41). Over the years it has consistently been recognized by the courts to have two purposes — primarily, to prevent fraud; and secondarily, to avoid multiple litigation. More specifically, Congress is said to have had- as its major objective the prohibiting of trafficking in claims against the Government such as by persons who would be in a' position to exert political pressure or improper influence in prosecuting claims before the departments, the courts, or the legislature, [citations omitted] Secondarily, the courts have ascribed to Congress the motive of enabling the United States to deal exclusively with the original claimant instead of with several parties, thus obviating the necessity of having to inquire into the validity of specific transfers or assignments of the claim, minimizing subjection to successive litigation upon the same claim, and eliminating the risk of double payment or multiple liability, [citations omitted] Patterson v. United States, 354 F.2d 327, 329, 173 Ct.Cl. 819, 822-823 (1965) (footnote omitted).

When an assignment, or class of assignments, has been found not to pose those risks, the Act has ordinarily been held inapplicable.

The first significant fact about the assignment of Wyman’s claim against the Government to Keydata is, of course, that it was done under order of the Superior Court of Massachusetts, as a result of an adversary proceeding. In that respect it is very close to the other classes set out above, which have been held not to transgress the Assignment of Claims Act. Like those exempted classes, recognition of the Wyman-Keydata assignment will not frustrate the Congressional objectives.

For one thing, the court-ordered assignment will not increase the number of parties with whom the Government must deal; as discussed more fully infra, Keydata, not Wyman, is basically, if not technically, the real party in interest; Wyman is involved as a conduit more than anything else. Also, the case presents no real risk of double liability because the court-ordered assignment fully empowers Keydata to “give releases or discharges” on behalf of Wyman for all or any part of the $39,000 claim. If Keydata should recover on its claim here, it would be a small matter to condition payment of the judgment on the execution of a release binding against Wyman; we have imposed this condition to prevent double recovery. Cf. Carchia v. United States, 485 F.2d 622, 637, 202 Ct.Cl. 723, 740 (1973).

The Government urges that, since the assignment was ordered as part of a suit instigated by Keydata “for the sole purpose of attempting to circumvent the provisions of the Assignment of Claims Act,” the normal exemption granted to judicially-compelled transfers should not be extended. It is said that the exception should be applied only where the assignment is involuntary, and that the Keydata-Wyman litigation was not defended with sufficient vigor.

The case law does not bear out the first distinction. Among the transfers found not to invoke the Act are those by devise or inheritance, and assignments from a defunct business organization to its substantially identical successor (see supra). These categories have a considerable element of volition, perhaps even more than in the situation before us.

As for the second point, we might be persuaded to regard with suspicion some assignments ordered as the product of collusive or sham litigation, but this is not such a case. The Government gives us no good reason to suspect the Keyda-ta-Wyman suit. The mere fact that both parties joined in a stipulation of facts is not enough, especially where the dispute centers on the legal rights arising from essentially uncontested events. The answer filed by Wyman to Keyda-ta’s complaint seems a bona fide adversary response in the context of Wyman’s interest in the controversy.

In any event even if the state action were somehow vulnerable, its only effect was to transfer the right to bring the claim to the basic party in interest. It is clear from the wording of the lease amendments, and the fact of their contemporaneous execution, that Wyman was merely a conduit through which GSA paid Keydata for the leasehold improvements. The tenant asked Wyman’s consent (as required by its lease) before adding the air conditioning equipment, and such consent was apparently given. A letter from Wyman to Keydata at the time it was vacating the computer room stated: “If you choose to remove [the air conditioning equipment with associated duct work, piping and electrical work] you are, of course, required to restore the premises to their original condition,” thus implying that the tenant had a right to carry away this equipment. The improvements clearly belonged to Keydata, and it was natural that Keydata would be the one to be compensated if the Government, as successor tenant, were to enjoy their use.

As we have said, such a court-ordered assignment, transferring the cause of action from the nominal owner to the beneficial owner, does not go counter to the legislative objectives of the Assignment of Claims Act. A transfer of that kind to the most intimately concerned claimant is unlikely to pose an added danger (and here does not) of fraud in prosecution of the claim, or of expanding the number of parties with whom the Government must deal, to its prejudice or consternation.

II

The Government raises another, related objection to the competency of Key-data to bring this suit. It is argued that Wyman was not liable to Keydata for the $39,000 if the Government did not in fact pay it that sum, and that therefore Wyman (in whose shoes Key-data now stands) was not injured by the refusal to pay the money. The contention springs from the wording of this part of the Keydata-Wyman lease amendment:

LESSOR shall not be obligated to make * * * [payment of $39,000] unless and until LESSOR receives such sums from the Government, nor shall LESSOR be liable to LESSEE in any event whatsoever should the Government fail to deliver such sums to LESSOR.

Defendant analogizes the legal situation created by this provision to that in Severin v. United States, 99 Ct.Cl. 435 (1943) cert. denied, 322 U.S. 733, 64 S.Ct. 1045, 88 L.Ed. 1567 (1944), holding that a prime contractor cannot sue for damage suffered by its subcontractor, if the prime contractor is in no way liable or responsible to the subcontractor for its loss.

This court has already dealt specifically, in considering the Severin doctrine, with limiting provisions comparable to that in the Wyman-Keydata arrangement. In Donovan Construction Co. v. United States, 149 F.Supp. 898, 900, 138 Ct.Cl. 97, 99, cert. denied, 355 U.S. 826, 78 S.Ct. 34, 2 L.Ed.2d 39 (1957), the prime was liable to the sub for extra work caused by the Government “as and when it is paid therefor by the Principal [Government].” It was held that this did not remove the prime’s obligation to proceed against the Government, administratively and by recourse to the courts, and Severin did not control (149 F.Supp. at 900, 138 Ct.Cl. at 100). The same ruling was made in Barnard-Curtiss Co. v. United States, 301 F.2d 909, 913, 157 Ct.Cl. 103, 111-112 (1962), where the subcontractor released the prime from all liability except as to a claim the latter was pursuing against the United States on behalf of the former; “[a]ny amount which [the prime] receives from the government with respect to [the sub’s] claim is excepted from this release, and [the prime] agrees to forward such sums it may collect when received.”

The holding was reconfirmed in J. L. Simmons Co. v. United States, 304 F.2d 886, 158 Ct.Cl. 393 (1962); there, the release given by the subcontractor provided that the prime would pursue the sub’s claim but that “[e]ither the disal-lowance of the [sub’s] claim by the court or the payment of the [sub] by [the prime] of the amount, if any, that may be recovered on said claim * * * shall completely extinguish all further obligation of [the prime] to [the sub] under the subcontract * * and shall operate as a full and complete release of any and all liability of [the prime] to the [sub] arising out of the performance by the [sub] of its work under said subcontract” (304 F.2d at 888, 158 Ct.Cl. at 396).

The court stressed that (a) there was no express negation of the prime’s liability or responsibility on the claim in question, (b) the clauses simply set forth the manner in which the prime’s liability was to be extinguished, (c) the prime assumed the obligation of prosecuting the claim, and that duty would have to be fulfilled before the duty to reimburse the subcontractor for the damages allegedly caused by the Government could be extinguished, and (d) “[i]t is apparent, then, that plaintiff is presently subject to liability on these claims and will continue to be so until liability is extinguished in accord with the method agreed to by the parties” (304 F.2d at 890, 158 Ct.Cl. at 400). See also, Owens-Corning Fiberglas Corp. v. United States, 419 F.2d 439, 457, 190 Ct.Cl. 211, 241-242 (1969).

The arrangement in the present case falls into this same category. Wyman was not absolved of all responsibility or liability by its agreement with Keydata. As the Donovan opinion put it, there was an implied undertaking “to proceed against the Government” in administrative and judicial proceedings should defendant fail to pay without good cause. 149 F.Supp. at 900, 138 Ct.Cl. at 99-100. Wyman would not be responsible if the defendant was absolved, or if collection could not be enforced, but the Donovan opinion recognized that such conditional liability “as a practical matter is perhaps the best that a subcontractor could hope to obtain from the prime contractor.” Id. 149 F.Supp. at 900, 138 Ct.Cl. at 99. It does not seem realistic to expect the prime contractor (or here, Wyman) to become an insurer of the defendant’s performance for its subcontractor (here, lessee).

We conclude therefore that, taking plaintiff’s pleadings and supporting documents at face value, our prior decisions show that Wyman has suffered enough of a legal injury to bring suit, and Key-data, its assignee, may do so in its stead.

Ill

On the merits, there is one important legal issue which can now be resolved. Keydata’s motion for summary judgment asserts that the Government had no legal right to rescind its lease agreement with Wyman, despite plaintiff’s holding-over. The argument is that the lease amendment obligated Wyman to do no more than convey to the Government the right to take possession of the computer room, that Wyman did not explicitly promise to deliver actual possession, and that no such promise can be implied.

Keydata’s description of the lack of obligation of a landlord to secure his tenant in possession (in the absence of an express undertaking) is an accurate reflection of the present Massachusetts law. But there is a clear split among the states between the “American” and “English” rules on the liability of a landlord when the demised premises are occupied by a third party at the commencement of the lease term. See 49 Am.Jur.2d, Landlord and Tenant § 217 (1970). Under the so-called “American” rule, the landlord merely covenants that possession will not be withheld by himself or by one having paramount title. Ibid. This is the current rule in Massachusetts. Snider v. Deban, 249 Mass. 59, 144 N.E. 69 (1924). It is sometimes justified on the ground that, since the lessor has conveyed the sole and exclusive right of possession to the new lessee, he cannot maintain an action for possession in his own name. Snider v. Deban, supra, 249 Mass, at 66, 144 N.E. at 72.

The other doctrine, called the “English” rule, requires that, when the lease is silent on the point, the landlord deliver actual possession of the premises at the beginning of the term. 49 Am.Jur. 2d, Landlord and Tenant § 217, at 235 (1970). The lessee’s rights are based on breach of the lessor's implied covenant that he has a right to lease the premises, or of the implied undertaking that the lessor will deliver possession to the lessee. 2 R. Powell, Real Property (Ro-han ed. 1966) § 225 [1]. If the lessee cannot take possession because of a holdover tenant, or some other obstructing third person, the landlord is in breach of his obligation.

This division in view compels us to face the problems of whether we are bound to follow the Massachusetts rule because the real property is located there — and, if not, what standard to apply. It will prove simpler to reverse these questions and first take up the issue of what rule to adopt if we are free to choose on the merits of the competing principles. In such an area of free choice, we “should take account of the best in modern decision and discussion” Padbloc Co. v. United States, 161 Ct.Cl. 369, 377 (1963); Groves v. United States, 202 Ct.Cl. 660, 674 (1973).

The American Law Institute’s most recent formulation, accepting the “English” rule, seems to us to represent “the best in modern decision and discussion.” The Institute’s phrasing (Restatement of the Law, Second, Property, Landlord and Tenant, § 6.2, p. 137 (Tent.Draft No. 2, 1974) is this:

Except to the extent the parties to the lease validly agree otherwise, there is a breach of the landlord’s obligations if a third person is improperly in possession of the leased property on the date the tenant is entitled to possession and the landlord does not act promptly to remove such person and does not in fact remove him within a reasonable period of time. For such breach, the tenant may

(1) terminate the lease * * *

The Restatement gives persuasive reasons in support of this choice (Restatement of the Law, Second, Property, Landlord and Tenant, § 6.2, Comment a, p. 139 (Tent.Draft No. 2,1974):

(1) The landlord knows, or should know, the status of the possession of the leased property better than the tenant in the period prior to the date the tenant is entitled to possession.
(2) The landlord knows, or should know, better than the tenant whether a person in possession of the leased property prior to the date the tenant is entitled to possession is properly or improperly on the leased property.
(3) Prior to the date the tenant is entitled to possession of the leased property, the landlord is the only one of the two who can evict a person improperly in possession of the leased property.
(4) In the situation where the person in possession of the leased property is entitled to be there until the date the tenant is entitled to possession, the case of the possible holdover prior tenant, the landlord is the only one of the two who had an opportunity to get some assurance that the prior tenant would not hold over.
(5) The tenant will have received less than he bargained for if he must go forward with the lease and bear the cost of legal proceedings to clear the way for his entry on the leased property.

This “English” rule conforms to the commonsense notion of what a lease is. The tenant is buying space — in a building or in the open — and not merely the right to bring a lawsuit to try to get the space. The “American” (or Massachusetts) rule, on the other hand, rests on an abstruse technicality — the separation of legal title (which remains in the landlord) from the right to possession (which is conveyed to the new tenant)— and represents an unfortunate example of mechanical jurisprudence, grinding out a result without any regard for the true interests or policies involved.

Plaintiff objects that adoption for federal leases of the rule requiring the landlord to deliver actual possession places a Massachusetts lessor in a dilemma — he must deliver possession but cannot evict a third party or holdover tenant after the lease term has begun. See Snider v. Deban, supra, 249 Mass, at 66, 144 N.E. at 72. As the ALI comment suggests this difficulty is not insuperable. First, a landlord is able to protect himself in the lease document by expressly limiting or disclaiming his obligation to deliver possession, or else by requiring security of a prior tenant in possession that he will not hold over. Second, the landlord may have a remedy in damages against a holdover tenant; such at least is the majority American rule. 49 Am.Jur.2d, Landlord and Tenant, § 1123, at 1074 (1970). Third, the landlord is still in a better position to appraise, anticipate and bear the risk of this loss than a prospective tenant not yet in possession. The risk ought to be upon the owner, unless the prospective tenant expressly agrees to shoulder it.

Are we, however, free to elect the “English” rule as a uniform federal standard applicable to government leases in all domestic jurisdictions, including Massachusetts? The states have a considerable interest in the definition of the property interests within their borders, and some aspects of federal law do defer to that concern. See, e. g. Comm’r v. Stern, 357 U.S. 39, 44-45, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958); United States v. Bess, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958); United States v. Certain Property, 344 F.2d 142 (C.A.2, 1965). But though a lease may concern and convey a property interest, it is also very much a contract — and it is settled that the contracts of the Federal Government are normally governed, not by the particular law of the states where they are made or performed, but by a uniform federal law. Padbloc Co. v. United States, 161 Ct.Cl. 369, 377 (1963); United States v. Wegematic Corp., 360 F.2d 674, 676 (C.A.2, 1966); Groves v. United States, 202 Ct.Cl. 660, 674 (1973). Leases are not sufficiently different from other federal procurement contracts to call for a different policy across-the-board in the construction of their terms. At least in this case in which there is no question as to the content of the property interest transferred, but merely a delineation of one of the landlord’s collateral obligations, there is no adequate reason to subordinate federal to state law. It is true that in Security Life & Accident Ins. Co. v. United States, 357 F.2d 145, 148-149 (C.A.5, 1966), the court applied Alabama law to a federal lease, but it did so only after finding that, in that particular, Alabama law fully conformed to the “general rule” and “general contract law” which would normally apply against private citizens in the same circumstances; in effect the court applied the accepted, general rule, not a special or unusual state doctrine.

The Federal Government’s need for a uniform rule is strong. It ought to know in advance what its rights are if the premises are not available on the due date. But there are many jurisdictions in which it is not yet firmly established whether the “American” or the “English” rule controls, and the Government would either have to litigate or take a substantial chance on its position. On the other hand, as we have already indicated, the interest of the state in the landlord’s obligation if the premises are unavailable seems to us minor, and relatively unconnected with its concern with the definition of property interests within its jurisdiction.

We hold, therefore, that we are free to disregard the Massachusetts rule, and we do so — for the reasons we have given —in favor of the “English” rule as set forth in the Restatement, as the appropriate standard for government leases. Accordingly, we deny the plaintiff’s motion for summary judgment, grant on this ground the defendant’s motion as to the first cause of action, and dismiss that portion of the petition.

IV

This does not mean that the case can be disposed of now. There is a clear dispute, requiring resolution at the level of the trial division, as to whether the Government acquiesced in plaintiff’s delay in making the computer room available, or extended its time for moving out, so that the defendant is now es-topped from saying that January 1st was the crucial date (this is plaintiff’s second cause of action). The Government seeks summary judgment on this point also, but is obviously not entitled to it in view of the clear factual conflict. With respect to this claim, the defendant’s motion is denied without prejudice and the case is remanded to the trial division to determine the facts.

The result on the whole case is that the Government’s motion for summary judgment is granted as to the first claim but only on the ground that under the controlling rule the landlord was normally required to make the premises available to the Government on January 1st, and is otherwise denied as to both claims. The plaintiff’s motion for summary judgment on the first claim of the petition is denied and that claim is dismissed. The second claim is remanded to the trial division for further proceedings.

      . Formerly known as Charles W. Adams Associates, Inc., and also as Keydata and Adams Associates, Inc., but referred to as “Keydata” for convenience.

      . One reason why this awkward form was used instead of a simple sublease was because Keydata’s lease contained restrictive provisions which the Government thought undesirable.

      . The Government-Wyman agreement states in pertinent part: “Effective October 1, 1968 and upon receipt of an invoice from the Lessor the Government shall pay an additional lump sum payment of $39,000 for Tenant Improvements identified as follows:
      Airconditioning equipment in computer rooms including electrical wiring and cables [footnote omitted].
      Draperies in all areas.
      The above Tenant Improvements shall become the property of the Government and otherwise subject to the provisions of Paragraph 8 of the basic lease.”
      The Wyman-Keydata amendment reads in part: “LESSOR agrees to pay LESSEE, upon receipt thereof from the Government, * * * the sum of $39,000.00 for a twenty-five (25) ton air conditioning unit with associated duet work, piping and electrical work, located in said 2,093 square feet on the first floor * *

      . See Part IY, infra.

      . Keydata was never in direct privity of contract with the Government in this transaction, nor has any such contention been made.

      . The Assignment of Claims Act provides in relevant part:
      “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, except as hereinafter provided, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof, * * * »

      . The final decree of the Massachusetts court held in part:
      “This cause came to be heard, and thereupon, upon consideration thereof, it is ORDERED, ADJUDGED and DEGREED:
      “1. That Respondents execute and deliver to the Petitioner an assignment of all right, title and interest of the Respondents in any claim against the United States of America for the sum of $39,000 arising out of the matters set forth in the Petition, such assignment to be in the form of Exhibit A attached hereto. * * * ”

      . There is, of course, no suggestion that Key-data has sought or is likely to exert improper influence on the handling of the claim, or that it could do so. The state court supervision of the assignment is warrant against that likelihood, as is Keydata’s pre-existing substantial interest in the claim. This is obviously not the case of a speculator buying up a claim to see what he can collect on it.

      . That might amount, if the parties agreed, simply to the prime’s “lending its name” for the purposes of a court suit or presentation of a claim (and thus, of course, subjecting itself to a possible counterclaim).
      The decree of the Massachusetts court in this instance states that “upon execution and delivery of such assignment the Respondents [the Wyman Trust] will have no further obligation whatsoever to the Petitioner [Key-data] under the lease referred to in said assignment, whether or not Petitioner obtains any relief or recovers any amount on any claim or claims so assigned” (emphasis added). This affirmatively implies that, prior to the assignment, the Wyman Trust did have an obligation to plaintiff, and it was only the assignment which ended the obligation.

      . We do not read the clause as freeing Wy-man from attempting to collect from the Government once the latter’s liability was established.

      . Perhaps a distinction might be drawn as to the characterization of property interests, i. e., what is part of the real estate .and what is personalty. That issue is not before us in this case,

      . The remand also includes the point whether defendant acted to terminate the lease without affording Wyman a reasonable period of time to remove Keydata.


author: PER CURIAM: WHITE, Senior Trial Judge:

text:
    J. R. YOUNGDALE CONSTRUCTION CO., INC. v. The UNITED STATES.
    No. 72-73.
    United States Court of Claims.
    Oct. 23, 1974.

      O. P. Easterwood, Jr., Washington, D. C., atty. of record, for plaintiff. Mc-Nutt, Dudley, Easterwood & Losch, Washington, D. C., of counsel.
    Michael J. Rubin, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before DAVIS, KUNZIG and BENNETT, Judges.
   ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

PER CURIAM:

This case comes before the court on defendant’s motion, filed April 8, 1974, requesting that the court adopt, as the basis for its judgment in this case, the recommended decision of Senior Trial Judge Mastín G. White, filed January 22, 1974, pursuant to Rule 166(c) on plaintiff’s motion and defendant’s cross-motion for summary judgment. Upon consideration thereof, without oral argument, it appears that the trial judge by order of March 6, 1974, made certain amendments to the said recommended decision, that plaintiff has filed no request for review by the court of either the recommended decision of January 22, 1974, or the order of March 6, 1974, and that the times for so doing pursuant to the Rules of the Court have expired. Since the court agrees with the trial judge’s recommended decision, as amended, as hereinafter set forth, it hereby grants defendant’s motion of April 8, 1974, and adopts the amended recommended decision as the basis for its judgment in this case. Therefore, plaintiff’s motion and the defendant’s cross-motion for summary judgment are denied without prejudice; and pursuant to 28 U.S.C. § 1491, as amended by Public Law 92-415 (86 Stat. 652), the plain-iff’s aggregate claim is remanded to the Armed Services Board of Contract Appeals for the holding of such hearing or hearings as may be deemed advisable and for a determination, in the first instance, as to whether a waiver of the plaintiff’s 6-day delay in mailing the appeal is warranted, and, if such waiver is granted, for a determination on the merits of the plaintiff’s aggregate claim. Further judicial proceedings are suspended for a period of not to exceed 6 months pending the completion of the remand proceedings. The attorney of record for the plaintiff is designated to advise the court of the status of the remand proceedings at intervals of 90 days or less.

OPINION OF TRIAL JUDGE

WHITE, Senior Trial Judge:

The plaintiff in this case asks the court to review the action of the Armed Services Board of Contract Appeals (“ASBCA”) in dismissing, as untimely, an appeal which the plaintiff had taken from a decision by the contracting officer under Contract No. N62474-70-C-0615 (“the contract”) between the plaintiff and the defendant (represented by a contracting officer of the Naval Facilities Engineering Command, Department of the Navy). The ASBCA did not hold a hearing for the reception of oral or documentary evidence in connection with the consideration of the appeal, but dismissed the appeal on the basis of documents that were available to the ASBCA. The factual statements in this opinion are based on the same documents.

The contract involved the construction by the plaintiff of barracks for enlisted men at the Naval Auxiliary Air Station, Fallon, Nevada. The plaintiff was to be paid $1,504,500 for the work.

The contract contained the standard “disputes” provision that is customarily found in Government construction contracts. It stated (among other things) that “The decision of the Contracting Officer [on a dispute concerning a question of fact arising under the contract] shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the head of the agency involved.”

On January 29, 1971, the plaintiff proposed to the Navy Department that the “mix design * * * [for precast lightweight concrete be] made up with a naturalite material in lieu of man-made aggregate material.” The Navy Department’s Resident Officer in Charge of Construction Contracts at the Naval Auxiliary Air Station, Fallon, Nevada (“the resident officer”), responded on April 8, 1971, by informing the plaintiff “that the contractor’s proposed use of ‘naturalite’ as a lightweight concrete aggregate as forwarded by contractor’s Submittal No. 1 dated 29 January 1971 is disapproved,” and by directing the contractor “to use lightweight concrete aggregate which complies with the applicable portions of the subject contract specification, Section 3A., Concrete Construction.” Section 3A of the contract specifications related to cast-in-place lightweight concrete and required that the aggregate be either expanded shell, expanded clay, expanded slate, or expanded slag.

A telegram dated March 10, 1971, from the plaintiff to the resident officer stated in part as follows:

We are forthwith proceeding with revising our mix design to comply with the Governments demand so as to preclude further unnecessary delays to the project. However, we are doing so under protest as we consider Governments demand to be a change within the realm of Clause 3, Changes of the General Provisions of our contract.
All costs incurred as a result of Governments action stated herein above will be submitted as soon as same are ascertainable, together with complete justification therefor.

In a letter dated April 28, 1971, and addressed to the resident officer, the plaintiff requested the issuance of a change order to cover the added expense allegedly incurred because of the Government’s requirement that man-made aggregate be used for precast lightweight concrete, and also requested a 30-day extension of the time prescribed in the contract for the completion of the work under the contract. Accompanying this letter was a detailed statement of the additional costs claimed by the plaintiff, totaling $20,728.

On August 26, 1971, and again on November 19, 1971, the plaintiff wrote to the resident officer and requested information concerning the status of the aggregate claim. The resident officer apparently did not reply to either of these communications. However, on December 8, 1971, the Officer in Charge of Construction, Western Division, Naval Facilities Engineering Command, wrote to the plaintiff and denied the claim for additional compensation in the amount of $20,728, and also the claim for a 30-day time extension.

In a letter dated December 29, 1971, and addressed to the Commander of the Naval Facilities Engineering Command, the plaintiff requested reconsideration of the rejection of the claim which the plaintiff had submitted on April 28, 1971, There does not seem to have been any reply to the plaintiff’s communication of December 29, 1971. The plaintiff wrote to the same officer again on March 1, 1972, and asked for information concerning the status of the matter. By means of a letter dated March 14, 1972, the plaintiff was informed that its claim had been forwarded “for a contracting officer’s decision.”

The contracting officer’s decision, denying the plaintiff’s aggregate claim, was dated November 21, 1972, and it was received by the plaintiff on November 27, 1972.

The plaintiff prepared a written appeal from the contracting officer’s decision and mailed the appeal on January 2, 1973, or 6 days after the expiration of the 30-day period prescribed in the “disputes” provision of the contract for the taking of appeals from decisions by the contracting officer. In connection with the appeal, the plaintiff represented to the ASBCA (among other things) “That with the intervention of the holidays and the delay of the Christmas mails (since counsel resides on the East Coast and Appellant on the West Coast) the formal appeal document * * * was not sent until 2 January 1973, or moré than 30 days from the receipt of * * * [the contracting officer’s decision], although Appellant advised the OICC by telephone in November after receipt of the adverse final decision that he was appealing such adverse decision * * * .” The plaintiff requested that the ASBCA “sustain the verbal appeal to the representative of the contracting officer * * * as being timely, or in the alternative, waive the lateness thereof, for good causes shown, and find and determine that an equitable adjustment for the additional work performed is in the sum of $20,728 * * * .”

Under the date of January 31, 1973, the Government submitted to the ASBCA a motion asking that the plaintiff’s appeal be dismissed because the plaintiff had failed to mail the appeal within the 30-day period prescribed in the “disputes” provision of the contract.

In its response to the Government’s motion to dismiss, the plaintiff made the following factual assertions in support of the request that the ASBCA either consider the appeal to have been timely filed or waive the 6 days of lateness, and consider the appeal on its merits:

(1) A telephone conversation was made by a Vice President of Appellant to an authorized field representative of the contracting officer notifying him that an appeal was being filed.
(2) A reasonable time of 6 days only elapsed from the end of the 30-day period until a formal, written appeal was filed.
(3) The final decision was received during the rush and press of the holidays or Christmas period.
(4) Appellant’s office is in San Diego and his Counsel’s office is in Washington, D. C., further delaying the already deplorable mail delivery time.

In connection with the 6-day delay in mailing the appeal, the plaintiff asserted that “it took the Government one year and seven months to write a final decision.”

The plaintiff’s appeal was dismissed by the ASBCA in a decision dated February 28, 1973 (ASBCA No. 18090).

With respect to the plaintiff’s representation to the ASBCA that an oral appeal from the contracting officer’s decision had been taken over the telephone in November 1972, after the receipt of the contracting officer’s decision, the ASBCA stated that “an oral appeal is not effective,” in view of the contractual agreement that the contracting officer’s decision would be final in the absence of a written appeal mailed within 30 days of the receipt of such decision. The correctness of this ruling is not questioned by the plaintiff in the motion for summary judgment and supporting brief filed with the court.

In connection with the plaintiff's request that the 6-day delay in mailing the appeal be waived upon the basis of the plaintiff’s representations concerning the oral notification within the 30-day period of the intention to appeal, the occurrence during the 30-day period of the holiday season and its delaying effect on mail service between the plaintiff in San Diego, California, and counsel in Washington, D. C., and the long delay by the Government itself in processing the plaintiff’s aggregate claim, the ASBCA stated that “the Board has made it crystal clear that it considers itself without authority to decide untimely appeals on the merits.” Hence, it was the view of the ASBCA that the mailing of the plaintiff’s appeal within the prescribed 30-day period was jurisdictional, and, therefore, that the board did not have any authority to consider whether the plaintiff’s representations, if true, would be sufficient to justify a waiver of the plaintiff’s 6-day delay in mailing the appeal.

Contrary to the position taken by the ASBCA, this court has held that strict compliance with the time limit prescribed in the standard type of “disputes” provision for the taking of appeals is not jurisdictional, and that boards of contract appeals have the power, in proper circumstances to extend or waive compliance with such time limit. Maney Aircraft Parts, Inc. v. United States, 453 F.2d 1260, 1262, 197 Ct.Cl. 159, 163 (1972); Monroe M. Tapper & Associates v. United States, 458 F.2d 66, 68, 198 Ct.Cl. 72, 76 (1972).

The principle of fairness, therefore, requires that the ASBCA exercise its discretion in this instance by considering whether the circumstances warrant a waiver of the plaintiff’s 6-day delay in mailing its appeal in connection with the aggregate dispute.

CONCLUSION

The plaintiff’s motion and the defendant’s cross-motion for summary judgment are denied without prejudice; and pursuant to 28 U.S.C. § 1491, as amended by Public Law 92-415 (86 Stat. 652), the plaintiff’s aggregate claim is remanded to the Armed Services Board of Contract Appeals for the holding of such hearing or hearings as may be deemed advisable and for a determination, in the first instance, as to whether a waiver of the plaintiff’s 6-day delay in mailing the appeal is warranted, and, if such waiver is granted, for a determination on the merits of the plaintiff’s aggregate claim. Further judicial proceedings are suspended for a period of not to exceed 6 months pending the completion of the remand proceedings. The attorney of record for the plaintiff is designated to advise the court of the status of the remand proceedings at intervals of 90 days or less.

      . The ASBCA said that neither party to the administrative proceeding had requested a hearing.


author: KUNZIG, Judge:

text:
    Karl F. KELLERMAN v. The UNITED STATES.
    No. 128-73.
    United States Court of Claims.
    Oct. 23, 1974.

      John I. Heise, Jr., Silver Spring, Md., attorney of record, for plaintiff.
    Peter A. T. Sartin, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant; Karen A. Berndt, Washington, D. C., of counsel.
    Before CO WEN, Chief Judge, and SKELTON and KUNZIG, Judges.
   ON DEFENDANT’S MOTION AND PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT

KUNZIG, Judge:

We face in this suit for back pay and ancillary relief the question of whether the Air Force Systems Command (Systems Command) properly exercised its discretion in refusing to adjust plaintiff’s salary to take advantage of the lifting of a Congressional wage ceiling. We conclude that defendant either had no discretion to act as it did or, alternatively, abused the discretion it exercised. Consequently, we hold for plaintiff.

The material facts are not disputed. Plaintiff, a career Civil Service employee and a preference eligible, was approved on January 10, 1965 as a Public Law 80-313 (P.L. 313) employee in Systems Command. P.L. 313, codified in 10 U.S.C. § 1581 (1970), authorizes the Secretary of Defense to establish up to 530 specialized civilian positions to carry out research and development relating to the national defense. Within the Air Force, this law was put into effect as the Air Force Executive Assignment Program.

The positions thus created are in the classified Civil Service, but are not included in the General Schedule (GS) for grade and salary purposes. P.L. 313 authorizes the Secretary of Defense, with the approval of the Civil Service Commission (CSC), to fix the rates of compensation for positions in the program, provided that he keep within the General Schedule pay ranges between GS-16, step 1 and GS-18, step 10. 10 U.S.C. § 1581(b) (1970).

Applying this statute, Air Force Manual (AFM) 40-2, § 4-6b provides:

Initial PL 313 position salaries are established within the salary range of the first step of GS-17 and the maximum salary rate of GS-18. Salaries are established to coincide with one of the General Schedule step rates for these grade levels and in consideration of:
(1) The value of the position to the organization.
(2) The salary alignment with comparable PL 313 positions.
(3) The recognized standing of the candidate in his scientific and professional field, (emphasis added)

AFM 40-2, § 4-6c(l) goes on to direct that, as a general rule, Air Force commands are to review P.L. 313 salaries at least once a year to recommend pay increases, based on contribution of the position to its organization.

In conformity with these statutory and regulatory guides, the analysis substantiating plaintiff’s appointment at GS-18 read in part:

The level of difficulty, the high degree of originality and ingenuity necessary to properly perform the duties and the overall importance of this position in the policymaking structure of the Command, along with the responsibilities for planning and directing of a specialized scientific and technical program of national significance allocates this position at the GS-18 level.

Accordingly, plaintiff’s grade level was established at the GS-18, step 1 level, with a salary of $27,055.

In July 1968, Congress increased the wage rate for GS-18 employees across the board to $30,239. Due to a limitation in the Federal Salary Act of 1967, however, no GS employee could be paid more than $28,000, and P.L. 313 employees were frozen at that limit. On July 14, 1968, pursuant to a regular agency wage review, the salaries of P.L. 313 employees in Systems Command slotted at the GS-18 level, including plaintiff, were raised to the $28,000 ceiling.

In January 1969, a decision was taken in Systems Command to abolish plaintiff’s position because the need for the position no longer existed. Approximately one month later, Congress lifted the ceiling on executive GS levels. The salaries of all P.L. 313 employees, save plaintiff, were accordingly adjusted to the authorized GS-18 level previously blocked by the 1967 ceiling. As a result of the adjustment, the salaries of P.L. 313 executives at the GS-18, step 1 level were raised to $30,239, while those at the GS-17, step 3 level rose to $28,014. In explaining to Air Force Headquarters why plaintiff’s salary alone was being retained at the former ceiling, the Director of Systems Command Civilian Personnel wrote:

In view of the pending abolishment of Mr. Kellerman’s position, General Ferguson [Commander, Systems Command] felt his salary should remain at $28,000.

By notice of reduction in force (RIF) dated May 29, 1969, plaintiff was informed he was to be released effective June 30. In lieu of separation, plaintiff was offered a non-P.L. 313 position as general engineer, GS-15, at a salary of $25,711. On June 13, 1969, this offer was amended to one as supervisory general engineer, but with no increase in proffered salary. Because plaintiff’s salary was at this point lower than that of any other P.L. 313 employee in Systems Command, he was not offered the chance to displace any such employee slotted at a lower grade. Ten days later, plaintiff was notified that his failure to reject the offered GS-15 position constituted his acceptance.

Plaintiff’s administrative appeal of this Air Force action followed a long and complicated procedure through the CSC. Ultimately, on September 1, 1972, the CSC Board of Appeals and Review (BAR) sustained the Air Force, holding plaintiff was properly deprived of a salary increase in February 1969, which would have allowed him to “bump” another P.L. 313 employee at the time of his RIF. The BAR concluded that no statute or Air Force regulation required the Air Force to grant plaintiff a salary increase pursuant to the Congressional lifting of the 1967 salary ceiling. Specifically, the BAR held that AFM 40-2 required P.L. 313 wages to coincide with General Schedule salaries only initially, and that no subsequent adjustment was mandated.

Plaintiff’s request for review of this administrative determination is before the court on cross-motions for summary judgment. We conclude that the BAR decision is erroneous as a matter of law and that plaintiff-is entitled to judgment.

Plaintiff asserts that the controversy at hand does not involve whether he was entitled to a salary increase in February 1969: that decision had been taken the previous July when Systems Command applied Congress’ across-the-board increase in General Schedule wages to all P.L.- 313 employees including plaintiff. According to plaintiff, his case turns on whether the Air Force acted arbitrarily and capriciously in denying him the benefit of the salary increase by refusing to let him take advantage of the February 1969 wage ceiling removal. Plaintiff argues the Air Force had no discretion under its own regulations and practices to refuse lifting the ceiling on plaintiff’s wages. Indeed, plaintiff suggests the Air Force sought to discriminate against him in not lifting the ceiling on his salary.

Defendant responds that the statutory and regulatory scheme under which plaintiff was employed leaves salary adjustments to the discretion of the employing agency, and that judicial review of plaintiff’s plight is consequently inappropriate.

No Discretion

While we find the issue thus joined a close one, we believe plaintiff’s argument carries the day. The Air Force regulations cited above, which put P.L. 313 into operation, make clear that both the initial pegging and subsequent review of P.L. 313 wage levels are to be undertaken in the light of the particular position’s value to its organization. Defendant argues the Air Force refusal to allow plaintiff the benefit of the 1969 wage ceiling increase was justified by this regulatory authority since the impending RIF of plaintiff’s position reflected the position’s reduced value to Systems Command.

Without attempting to define comprehensively the scope of the Air Force’s discretion regarding salaries of P.L. 313 employees, we conclude that the question of whether to grant plaintiff the benefit of the February 1969 wage ceiling removal was not a matter of departmental discretion. The decision to adjust upward P.L. 313 salaries in conformance with the Congressional across-the-board salary raise of July 1968 was taken by the Air Force in the same month. Presumably, the Air Force intended for its P.L. 313 employees pegged at the GS-18, step 1 level to enjoy the full, revised salary for General Schedule executives of that grade. This is logically inferred from the regulatory framework of the Air Force P.L. 313 program, which directs that salaries of program positions are established to “coincide” with those of particular grades and steps in the General Schedule. An increase to the full GS-18, step 1 wage level was in fact allowed for every Systems Command P. L. 313 employee pegged at that level, save plaintiff, when the pay ceiling was lifted in February 1969.

Once the Systems Command decided to allow its P.L. 313 employees the full benefit of their July 1968 salary raise, it discriminated without justification by singling plaintiff out for different treatment. The February 1969 salary jump did not result from the periodic review of P.L. 313 positions envisaged by Air Force regulation; it represented instead a delayed realization of the wage adjustment already earned by P.L. 313 employees the previous summer.

In this light, the present controversy finds strong analogy in our earlier case of Nordstrom v. United States, 177 Ct.Cl. 818 (1966), where petitioner was awarded the benefit of a general reclassification upward in the grades of certain federal positions. The court’s reasoning there is equally applicable to the present dispute:

In the instant case, no exercise of discretion is required. Plaintiff is not seeking a promotion — he is seeking the benefit incident to a reclassification, an automatic action which applied to everyone [in plaintiff’s position] .

177 Ct.Cl. at 825. The case now at bar involves not a general reclassification of grade level but a similar general removal of a wage ceiling.

Defendant does not strengthen its argument by citing other instances in which P.L. 313 employees were denied pay increases. Indeed, this factor might cut against defendant since none of the other alleged refusals to increase pay involved the lifting of an across-the-board wage ceiling. All of them purportedly concerned instances in which Systems Command declined to extend a Congressional General Schedule increase to particular P.L. 313 employees. Thus, in none of those instances could the employee be said to have already “earned” the increase being denied.

Abuse of Discretion

Even were the wage ceiling removal considered a matter of agency discretion, we would have to conclude that Systems Command abused its discretion in refusing to lift the ceiling in the present case. This is because the failure to allow plaintiff to take advantage of the ceiling removal led directly to denial of his Veterans’ Preference Act (VPA) retention rights.

Section 12 of the VPA guarantees each preference eligible the opportunity to “bump” employees occupying lower retention levels within the same competitive group. 5 U.S.C. § 3502(b) (1970). By Air Force regulation, the application of the VPA benefit to P.L. 313 employees is expressly recognized, provided the “bumping” employee has “greater retention standing and receives a higher salary” than the “bumped” party. AFM 40-2, § 4-9(a)(2). Violation of his “bumping” rights gives a separated preference eligible employee a cause of action for back pay. Newman v. United States, 143 Ct.Cl. 784 (1958); Baxter v. United States, 136 F.Supp. 748, 129 Ct.Cl. 254 (1954), cert. denied, 350 U.S. 936, 76 S.Ct. 308, 100 L.Ed. 817 (1956).

Despite his preference eligible status, plaintiff was offered no other P.L. 313 position at the time of his RIF notification, even though at least one such employee, Ulrich K. Heidelauf, slotted as a GS-17, step 3, occupied a lower retention category. This was due to the fact that, by remaining the only P.L. 313 employee locked into the 1967 $28,000 wage ceiling, plaintiff at the time of his RIF had the lowest “representative rate” (salary, for VPA purposes) in his competitive group, although his position had initially been pegged at one of the highest GS levels permitted by statute.

Defendant concedes that plaintiff’s salary alone prevented him from displacing a lower retention P.L. 313 employee. By letter of April 6, 1970, the Air Force Civilian Personnel Officer informed the CSC Appeals Examining Office that plaintiff could not “bump” Dr. Heide-lauf in particular because plaintiff’s salary was too low. At the time of plaintiff’s RIF, Dr. Heidelauf, despite his lower slotting had a representative rate of $14 higher than that of plaintiff, having been allowed to take advantage of the February 1969 salary ceiling lift.

Against this background, the present case emerges as similar to the dispute in Smith v. United States, 151 Ct.Cl. 205 (1960), where we ruled that a RIF was wrongfully conducted in violation of preference eligible rights. The court there explained at 208:

Had plaintiff been given the same treatment as other employees, the opportunity to be considered for reassignment to another position in the same lower level * * * would have been accorded him. Instead, plaintiff was reassigned and retained in an identical position to the one which had just been abolished by the reduction-in-force action. This placed plaintiff in the absurd position of having only himself to compete with in any future reduction in force.

In the present case, plaintiff is again being treated differently from his fellow employees; and the result is to leave him in the equally absurd position of having no one else to displace.

Regardless of whether defendant had discretion to withhold the benefit of a Congressional wage ceiling removal, the withholding of the benefit in this particular case resulted in an unnecessary forfeiture of plaintiff’s VPA rights. It is irrelevant whether this injury was deliberately inflicted, as plaintiff suggests. Because of the illegal result produced, the Air Force withholding of the ceiling removal from plaintiff’s salary -on the basis of plaintiff’s impending RIF constituted an abuse of discretion.

For either one of the two reasons set forth above, we conclude that plaintiff is entitled to relief as a matter of law. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross-motion for summary judgment is granted. Plaintiff is entitled to recover back pay and to receive an adjustment in his returement rate by reason of salary lost during the period claimed. Judgment is entered to that effect with the amount of recovery to be determined pursuant to Rule 131(c).