author: SETH, Circuit Judge.

text:
    Lawrence N. KELLY, Appellant, v. The KROGER COMPANY, Appellee.
    No. 72-1805.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 25,1973.
    Decided Oct. 9, 1973.
    Rehearing Denied Nov. 12, 1973.
    Richard L. Reid of Steineger & Reid, Kansas City, Kan., for appellant.

      J. D. Lysaught, Kansas City, Kan., (Robert H. Bingham, Kansas City, Kan., with him on the brief), for appellee.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   SETH, Circuit Judge.

This is a diversity suit brought by a resident of Kansas against the defendant, The Kroger Company, an Ohio corporation. The action is for wrongful death, and the plaintiff is the surviving husband of the decedent who was shot and killed in the aftermath of a robbery of defendant’s supermarket where she had been shopping. The trial court granted defendant’s motion for summary judgment, and plaintiff has taken this appeal.

The record shows that the decedent was a customer in defendant’s store in Kansas City, Kansas, when a holdup took place. The robbers entered the front of the store with guns, took money from the checkout stands, and then ordered the store manager to open the safe in his office. The opening of the safe caused an alarm to sound at the Kansas City police department, but not at the store. Several police officers responded immediately to their alarm, and when they entered the front door, the robber ran to the rear part of the store. The police fired a shot at one of the robbers at this time in the store. The decedent was in the rear of the store, and a robber seized her as a hostage or a shield. As the robber left the store at the front, he forced her with him up the street a block or so as he attempted to escape. The police followed and the robber then shot and killed the decedent. The police then shot at the robber as he ran some distance, and captured him. The attempted robbery took place about 1:30 in the afternoon. During the course of the robbery, the store employees did not sound any other alarm nor attempt to direct or assist the police. This store had been robbed about a month before. Some fourteen robberies of grocery stores in the northeastern part of the city, where the store here concerned is located, had taken place in the prior eighteen-month period. An armed guard had been stationed in this store from time to time.

The complaint is based on the theory that the defendant was negligent in store procedure it had adopted to be followed during the course of such a robbery. The negligence alleged is thus the action taken once the holdup was in progress. The allegations are directed particularly to the silent alarm attached to the store safe. The complaint also on a somewhat different theory asserts that it was negligence not to have an armed guard in the store.

The trial court, in granting summary judgment for the defendant, held in effect that no negligence was stated in the allegations, and even had there been it could not have been the proximate cause of the injury because the consequences could not reasonably have been foreseen.

There are several significant Kansas decisions which have considered incidents which are somewhat similar. The standard of care owed to business invitees is clearly set out in Little v. Butner, 186 Kan. 75, 348 P.2d 1022, as one of “due care to keep the premises reasonably safe” for their use, but the proprietor is not an insurer of their safety. The Kansas cases also refer to foreseeability as in Elliott v. Chicago, Rock Island & Pacific R.R., 203 Kan. 273, 454 P.2d 124, and in Stevenson v. Kansas City, 187 Kan. 705, 360 P.2d 1.

It appears that the trial court in its memorandum relied strongly on the Stevenson case, and applied a foreseeability test. The complaint, however, alleges negligence arising from the actions taken by defendant during the course of the holdup. It is these allegations with which we are principally concerned. Thus the foreseeability of the holdup, as such, is not the problem in this aspect of the case.

The defendant had issued a pamphlet to its employees telling them what to do in the event of a holdup. The particular emphasis in the pamphlet was to do nothing to excite or startle the robbers. It stated in part that many robberies are by young persons who might start shooting if something unexpected should happen. The employees were warned particularly not to give any verbal alarm in the street because this would greatly increase the probability of injury. Thus the plaintiff asserts that the triggering of the silent alarm was not in accordance with the instructions given employees, was not a prudent act, and did not show an exercise of due care for the safety of the customers.

This matter of the propriety of action taken once a dangerous situation exists in a place of business was considered by the Kansas Supreme Court in Kimple v. Foster, 205 Kan. 415, 469 P.2d 281, and that decision is applicable at least to the extent that the plaintiff should be permitted to develop the facts to support his theory if he can do so. In Kimple v. Foster, the court considered the liability of a tavern owner for the injuries suffered by a customer in the course of an altercation in the tavern. The issue was the care owed to the injured, customer, and also the propriety of the action taken by the management once the danger became apparent. The proprietor of such an establishment ordinarily must be more alert for trouble than that of a grocery store; that is, the foreseeability that an incident may occur may be greater, and the possibility of injury is from other customers. However, we consider the decision applicable, because the court there refers to the dangerous situation which had developed and considered what the manager should have done about it. Under such circumstances, and as to business invitees, it should make no difference whether the establishment is a tavern or a store. See also 70 A.L.R.2d 621.

The Kansas court in Kimple also considered the length of time which must elapse after the danger becomes apparent before the duty arises. The court cites and quotes from Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, also a bar room case. The time element there stated is that there be “. . .a sequence of conduct sufficiently long to enable the proprietor to act for the patron’s safety.” This is perhaps an aspect of “foreseeability,” not so much that a particular incident may occur, but once one is in progress, when the danger to the customer is evident. Thus under this standard if there is an opportunity to comprehend the danger, negligence can then become a jury question. Coca v. Arceo was an appeal from the granting of a summary judgment, and it cites Priewe v. Bartz, 249 Minn. 488, 83 N. W.2d 116, also cited by the Kansas court in Kimple.

The same theory is advanced by the plaintiff in his complaint, that is, that the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken — action which served to increase the hazard and which in fact caused the injury. Under this theory of the case, the granting of summary judgment was error. The defendant did not meet its burden in showing an absence of factual issues relating thereto.

We express no opinion as to the allegation referring to the need for an armed guard in anticipation of a holdup as this allegation has not been herein considered.

The judgment is reversed and the case remanded for further proceedings in accordance herewith.


source: Caselaw Access Project

author: CECIL, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis CORNETT, Defendant-Appellant.
    No. 73-1134.
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed Oct. 5, 1973.

      Richard D. Cooper, Hazard, Ky. (Court Appointed), on brief, for appellant.
    Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., for appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.
   CECIL, Senior Circuit Judge.

The appellant, Curtis Cornett, appeals from his conviction in the United States District Court for the Eastern District of Kentucky on two counts of an indictment charging violation of certain provisions of Section 922, Title 18, U.S.C., relative to the acquisition of a firearm. Count one charged that the appellant on or about January 20, 1971 falsely stated in connection with the acquisition of a firearm that he had not been convicted of a felony when in fact he had been convicted of Grand Larceny on September 31, 1956. (sic) (Sec. 922(a)(6)). Count two charged that the appellant on or about January 20, 1971, having been convicted of a felony on September 31, 1956, (sic) knowingly received and had in his possession a firearm which had been transported in interstate commerce. (Sec. 922(h)(1)).

Briefly, the facts are that on January 20, 1971, the appellant went to Malo-ney’s Discount Store in West Liberty, Kentucky and purchased an O. F. Moss-berg Model 251C, .22 caliber semi automatic rifle, Serial Number B74882. In consummating the purchase he signed Firearms Transaction Record (Form 4473) which contains a false answer to the question of whether he had been convicted of a felony. Without the answer as given to this question he could not have purchased the gun. It was upon this answer that he was indicted.

The appellant was tried before a jury on November 9 and 10, 1972, found guilty and sentenced to two years imprisonment on each count, the sentences to run concurrently.

The appellant claims that the government did not prove beyond a reasonable doubt that he knowingly made a false statement. This raises a question of the sufficiency of the evidence. It is not in dispute that the appellant purchased the gun, that he had been convicted of the felony alleged, that he signed the Form 4473 and that it contained a “no” answer to the question of whether he had been convicted of a felony.

Form 4473 reads in pertinent part as follows:

“8. Certification of Transferee (Buyer) — an untruthful answer may subject you to criminal prosecution. Each question must be answered with a yes or no.
a. Are you under indictment in any court for a crime punishable by imprisonment for a term exceeding one year? .....
b. Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter — a yes answer is necessary if the judge could have given a sentence of more than one year.)
c. Are you a fugitive from justice?
d. Are you an unlawful user of, or addicted to, marijuana or a depressant, stimulant, or narcotic drug ?.....
e. Have you been adjudicated mentally defective or have you ever been committed to a mental institution ?.....
f. Have you been discharged from the Armed Forces under dishonorable conditions ?.....
g. Are you an alien illegally in the United States?.....
h. Are you a person who, having been a citizen of the United States, has renounced his citizenship 1 ... .
I hereby certify that the answers to the above are true and correct. I understand that a person who answers any of the above questions in the affirmative is prohibited by Federal Law from purchasing and/or possessing a firearm. I also understand that the making of any false or misrepresented identification with respect to this transaction is a crime punishable as a felony.”

Immediately below the certification is a place for the signature which was admittedly signed by the appellant.

The appellant testified that the only questions which Barbara Fugett, the clerk who sold him the gun, asked him from Form 4473 were his name, height, weight, race, address, birth and place of birth. He testified that she did not read to him or ask him any other questions from Form 4473. Thurston Vance, the son-in-law of the appellant, testified that he only heard the clerk ask the appellant the questions relative to his age, height, weight, etc., and that she did not give him the paper to read or read any other questions to him.

The clerk testified that she remembered the appellant being in the store and selling him the gun. She identified him in the court room. She testified on direct examination that she read all of the questions on the form to the appellant and that she wrote the answers and then gave the form to the appellant for his signature. She specifically testified that she read to the appellant all of the questions in Section eight of the form. On cross examination she testified that she did not specifically remember reading question 8B to the appellant “but if the ‘No’ is filled in by me and I always read the questions and I always read them word by word.”

We conclude that cumulatively there was sufficient evidence from which the jurors could draw a reasonable inference that would satisfy them beyond a reasonable doubt that the appellant subscribed his name to Form 4473 with a full understanding of its contents. It is not the function of our Court on Appeal to weigh the evidence. We consider only whether taking the evidence in its most favorable view to the Government it would permit the jury to find' the defendant guilty beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Blalack v. United States, 154 F.2d 591, 594 (C.A.6) cert, den., 329 U.S. 738, 67 S.Ct. 67, 91 L.Ed. 637; United States v. Wolfenbarger, 426 F.2d 992 (C.A.6); United States v. Luxenberg, 374 F.2d 241, 248 (C.A.6); United States v. Squires, 440 F.2d 859 (C.A.2), can be distinguished from the instant case on the basis of the difference in the substance of the Form 4473 used in the two cases.

We find the claim of the appellant that the trial judge should have admitted evidence that the appellant bought the gun for his brother to be without merit. The appellant admittedly bought the gun and signed for it in his own name. The statute provides no exception to the rigid requirement of the qualification of a purchaser based on motive for the purchase. The motive may be considered in mitigation of the punishment but not in defense.

Another claim of the appellant is that the trial judge erred in not allowing him to testify that he did not know that Federal law prohibited him from purchasing a firearm. The thrust of the charge against the appellant is that he knowingly made a false statement with reference to his prior conviction of a felony. This goes back to the question of the sufficiency of the evidence. We have held on that claim made by the appellant that there was evidence from which the jury could find that he signed Form 4473 knowing that it contained the false statements.

“Section 922(a)(6) does not require a showing that appellant ‘knowingly’ violated the law; it simply requires proof that appellant ‘knowingly’ made a false statement. The crucial question for the jury was whether appellant understood the facts, not the law.” Cody v. United States, 460 F.2d 34, 38 (C.A.8).

No specific intent is required. United States v. Freed, 401 U.S. 601, 607, 91 S. Ct. 1112, 28 L.Ed.2d 356.

We do not consider the claim of appellant that the court erred in its instructions to the jury concerning the meaning of the word “knowingly”. At the conclusion of the instructions the court asked each counsel if there were any objections to the instruction. Counsel for the defendant answered: “Your Honor, the defendant has no objection.” After the jury had deliberated for a while a request was made for a definition of “knowingly”. The court reinstructed the jury on this subject and again asked each counsel if there were any objection. Counsel for the defendant replied, “No, Your Honor”. Rule 30, of the F.R.Cr.P. provides in part,

“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”

We do not find “Plain Error” in the questioned instruction. Rule 52(b) F. R.Cr.P.

Finally, it is contended on behalf of the appellant that the court erred in allowing the Government to impeach the appellant by showing that he had been convicted of a felony between the time of his indictment and trial. The question asked on cross examination is,

“Are you the same Curtis Cornett that was convicted in the Morgan Circuit Court on February the 23rd of 1972 of the felony crime of malicious shooting for which you were sentenced for a period of two years?”

There is a long line of cases in the Sixth Circuit in which this Court has held that when a defendant takes the witness stand he is in the same position as any other witness and his credibility may be impeached by showing that he has been convicted of a felony. If he denies the conviction, he may be confronted with the record. The only purpose of such testimony is to impeach the credibility of the witness. Whether or not it affects his credibility is a question for the jury.

There is some question whether the Sixth Circuit requires the prior felony conviction to involve moral turpitude. Moral turpitude has not been defined by the Court but Larceny by Trick, Second Degree Murder, Prostitution, Forgery and Internal Revenue violations have been considered to involve moral turpitude. We would place “malicious shooting” in the category of moral turpitude. Black’s Law Dictionary, Fourth Edition, defines moral turpitude as follows:

“An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”

The trial judge properly instructed the jury on the purpose of testimony of former convictions and limited its use to two purposes in this case; one, that a prior conviction was a material fact in the two counts of the indictment and two, that it could be considered as going to the credibility of the witness. In this connection the judge said,

“Ladies and gentlemen, I tell you if you believe the testimony of a witness that he has a prior conviction does not give you a basis for ignoring his testimony. You will give this defendant such credibility for his testimony as you think it deserves, but you are entitled to know of a prior conviction for the purpose of determining his credibility. You will give that prior conviction such weight as you think it is entitled to.”

We find no error in connection with the allowance of the question relative to the prior conviction of the defendant for “malicious shooting”.

The judgment of conviction is affirmed.

      . McLendon v. United States, 13 F.2d 777, 778; Banning v. United States, 130 F.2d 330, 337; Henderson v. United States, 202 F.2d 400; Smith v. United States, 283 F.2d 16, 21; United States v. Denton, 307 F.2d 336, 339; United States v. Jackson, 344 F. 2d 922, 923, cert. den. 382 U.S. 880, 86 S.Ct. 169, 15 L.Ed.2d 120; United States v. Yar-brough, 352 F.2d 491, 493; United States v. Wade, 364 F.2d 931, 936; United States v. Berriel, 371 F.2d 587; Wilson v. Wiman, 386 F.2d 968, 970; United States v. Mills, 440 F.2d 647, 649; United States v. Kiraly, 445 F.2d 291, 292.


author: SPRECHER, Circuit Judge.

text:
    The FIRST NATIONAL BANK OF CHICAGO et al., Plaintiffs-Appellants, v. Elliot RICHARDSON, Attorney-General of the United States, et al., Defendants-Appellees.
    No. 73-1573.
    United States Court of Appeals, Seventh Circuit.
    Argued July 30, 1973.
    Decided Sept. 13, 1973.

      Calvin P. Sawyier, Lois Lasky, Chicago, 111., for plaintiffs-appellants.
    James R. Thompson, U. S. Atty., William T. Huyck, John B. Simon, James C. Murray, Jr., and Floyd Babbitt, Asst. U. S. Attys., Chicago, 111., for defendants-appellees.
    Robert S. Cushman, Chicago, 111., for Chicago Central Area Committee, ami-cus curiae.
    George M. Covington, Chicago, 111., John Howard Association, National Council on Crime and Delinquency, and Illinois Prisons and Jails Project, amici curiae.
    Before KILEY, FAIRCHILD and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The issue on appeal is whether the construction of the partially-completed federal parking garage and detention center in Chicago should be enjoined pending the preparation of a detailed environmental impact statement or whether the General Services Administration (GSA) has satisfied the requirements of the National Environmental Policy Act of 1969 (NEPA) by issuing a detailed “environmental assessment” intended to show that this “major Federal action” is not one “significantly affecting the quality of the human environment.”

Inasmuch as the construction of the Chicago detention center and the litigation it has engendered have closely followed in time and pattern, the construction of, and litigation resulting from, a similar federal detention center in New York City which caused the Court of Appeals for the Second Circuit to give extensive consideration to most of the issues involved here, we shall note the factual and procedural similarities and differences in the two situations in some detail. This is particularly appropriate because the district court, this court, and all parties proceeded with one eye on the New York case as it developed in Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert, denied, 409 U.S. 990, 93 S. Ct. 313, 34 L.Ed.2d 256 (1972) (Hanly 7), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) (Hanly II).

I

The New York project, known as the Foley Square Courthouse Annex (Foley Square) consists of two buildings each approximately 12 stories high with a total of 345,601 gross square feet, one an office building for the staffs of the United States Attorney and Marshal and the other a detention center known as Metropolitan Correction Center.

Noting that not all agency action requires the preparation of an impact statement, the court in Hanly I stated that “the responsible federal agency has the authority to make its own threshold determination as to . . . [whether the federal action is ‘major’ and also has a ‘significant’ effect on the environment] in deciding whether an impact statement is necessary.” Hanly I, 460 F.2d at 644. On the basis of a short memorandum by GSA that tersely discussed problems of water, heat, sewage and garbage and concluded that the “impact of the proposed action will have no adverse effects on the environment, including ecological systems, population distribution, transportation, water or air pollution, nor will it be any threat to health or life systems or urban congestion,” the Court of Appeals affirmed the district court’s denial of a preliminary injunction, holding that the memorandum was sufficient to support GSA’s determination that the office building in Foley Square would have no adverse effects on the environment. Hanly I, 460 F.2d at 645-646.

However, the detention center, the Foley Square “jail,” was viewed as distinct from the office building determination. GSA had attempted to justify the detention center on the basis of the same abrupt memorandum which had satisfactorily terminated environmental attacks on the office building, but the Court of Appeals reversed the district court’s denial of preliminary injunctive relief, holding that as to the detention center, “in the context of an act designed to require federal agencies to affirmatively develop a reviewable environmental record, this perfunctory and conclusory language simply does not suffice, even for purposes of a threshold section 102(2) (C) determination.” Hanly I, 460 F.2d at 647. The court stated that GSA must at least consider those factors peculiar to detention centers which have an impact on the urban environment. Hanly I, 460 F.2d at 646-648.

The Chicago project, known as the United States Courthouse Annex and Federal Parking Facility (Chicago Annex), consists of one triangular-shaped 27-story building with an area of approximately 180,000 gross square feet for the detention center and a second rectangular 8-story, open-sided building with an area of approximately 315,000 gross square feet for the parking garage for about 850 automobiles.

In the present case, the GSA at first relied upon a 4-stage statement similar in length and content to the Foley Square memorandum to satisfy the threshold determination that the Chicago Annex was not one significantly affecting the quality of the human environment. The district court originally denied the plaintiffs’ motion for a preliminary injunction on March 30, 1973, but we directed the vacation of that order on April 26, 1973 in appeal No. 73-1324 and in our order of that date disposed of three defenses which had been interposed by the governmental defendants: we held (1) that the plaintiffs (two Chicago banks, the Union League Club of Chicago, two not-for-profit citizens’ planning organizations and an individual) had standing to sue under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) by virtue of their “use” of the area to be affected by the construction of the Chicago Annex; (2) that “[although the plaintiffs could have brought this action earlier than they did,” we declined to invoke laches because of “the public interest status accorded ecology preservation by the Congress,” in accordance with Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972); and (3) that the fact that one plaintiff bank which later withdrew from the case had been recalcitrant with respect to answering interrogatories did not detract from the right of the other plaintiffs to maintain the action.

As the Second Circuit did in Hanly I, we remanded the case to the district court with directions to enter an injunction effective in no less than 30 days unless in the interim GSA supplemented its threshhold environmental impact assessment and the court upon a hearing determined that it was adequate. If such assessment was not adequate, an injunction was to be entered and continued in force until an environmental impact statement was made in full compliance with Section 102(2) (C) of NEPA.

The district court entered an order on May 7, 1973, enjoining further construction of the Chicago Annex as of 5:00 P. M. on May 26, 1973. In that interim, GSA invited and received objections to the construction based upon environmental effects and after consideration of these and other factors filed on May 15 a 142-page supplemental environmental assessment supported by a large number of exhibits. GSA considered the supplemental data and on May 17 made its determination “that construction and operation of the U. S. Courthouse Annex and Federal Parking Facility is not considered to be a major federal action that would significantly affect the quality of the human environment.”

The plaintiffs had submitted letters, statements and other documentary material to GSA, which were included in the GSA exhibits supporting the assessment. The assessment and exhibits were introduced in evidence when the district court held its hearing on May 21 and 22, at which time the plaintiffs called 5 witnesses.

On May 25, the district court denied the plaintiffs’ motion for a preliminary injunction and, in effect, vacated the May 7 order providing for an injunction effective May 26. In a 38-page memorandum opinion, Judge McGarr made findings and conclusions and adjudged that the GSA determination as to the lack of significant environmental impact of the Chicago Annex project (1) was consistent with the requirements of the National Environmental Policy Act of 1969, Executive Order 11514 flowing therefrom and the Guidelines of the Council on Environmental Quality on Statements on Proposed Federal Actions Affecting the Environment, Circular No. A-95 Revised (February 9, 1971) and (2) “was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law or without observance of procedure required by law.”

A subsequent hearing on plaintiffs’ application for a permanent injunction was held on June 19, 1973, wherein the evidence received in support of the motion for preliminary relief was considered and the plaintiffs called 5 additional witnesses. On June 22 the court made additional findings and conclusions and denied the plaintiffs’ motion for a permanent injunction, as well as reaffirming his judgment regarding the GSA determination.

The plaintiffs appealed from the district court’s denial of their motion to alter and amend the memorandum opinion of May 25, 1973, denying a preliminary injunction, and from the June 22 order denying a permanent injunction.

II

After remand in Hanly I a new threshold determination of lack of significant effect on the quality of the human environment was made by GSA in the form of a 25-page assessment of environmental impact with some exhibits attached. The district court then denied plaintiffs’ renewed application for a preliminary injunction and the Hanly II appeal followed.

In the majority opinion, written by Judge Mansfield, the Court of Appeals held that although a court reviewing administrative action must determine de novo all questions of law, must determine whether factual findings are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law” (Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2) (A) and (D)), and must accept the administrative agency’s decisions as to mixed questions of law and fact if they have “warrant in the record” and a “reasonable basis in law” (NLRB v. Hearst Publication, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944)), the arbitrary and capricious standard should apply to NEPA exemption determinations since “significantly” as used in Section 102(2) (C) can be isolated as a question of law (Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Hanly II, 471 F.2d 823, 828-829.

In discussing the proper interpretation of the term “significantly,” the Court noted a complete lack of Congressional or administrative guidelines, stating that:

“Congress apparently was willing to depend principally upon the agency’s good faith determination as to what conduct would be sufficiently serious from an ecological standpoint to require use of the full-scale procedure.”

Hanly II, 471 F.2d at 830. The majority opinion then concluded that “in deciding whether a major federal action will ‘significantly’ affect the qualify of the human environment the agency in charge, although vested with broad discretion, should normally be required to review the proposed action in the light of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it, and. (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.” Hanly II, 471 F.2d at 830-831.

Before applying the suggested tests to the Chicago Annex, it is well to compare it with the Foley Square detention center in some detail.

The Foley Square jail was built in the Civic Center area of lower Manhattan in an area with many government buildings and courthouses but also immediately south of New York’s Chinatown where 50,000 people live, including 3,000 persons living in two large apartment buildings directly facing the jail some 100-150 feet away. It replaced an older Federal Detention Center located at West Street in Manhattan. It was designed as the detention center for 449 persons awaiting trial or convicted of short-term federal offenses; it provides space for diagnostic services, and medical, recreational and administrative facilities; as many as 48 detainees may participate in a community treatment program whereby they will be permitted to spend part of each day in the city engaged in work or study activity, returning to the center after completion of each day’s business; another program will provide service for out-patient nonresidents; and the center is serviced by about 130 employees, only 90 of whom are on the premises at any one time. Hanly I, 460 F.2d at 642; Hanly II, 471 F.2d at 826.

The Chicago Annex detention center is being built on a square block bounded by Van Burén, Clark, Congress Parkway and Federal Streets, on the south fringe of the downtown Chicago business district or “Loop” in a blighted area of deteriorating buildings including “flophouses,” adult book stores, arcades, liquor stores and taverns, interspersed with several new non-residential office and business buildings such as the Illinois Bell Telephone Building, the Western Union Building, the Federal Reserve Bank and many others. The Annex is in close proximity to the five major downtown Chicago federal buildings. It is five blocks from the Chicago Civic Center and state courthouses and six blocks from the City Hall and County Buildings.

The district court found that “[t]here is no suggestion in this case that the detention facility will be built in close proximity to existing residential area [n]or is there any evidence in the record which compels the conclusion that the site will ever be in close proximity to residential areas.”

The Chicago Annex, unlike Foley Square, does not replace another federal detention center at another location within the city, but will house detainees presently maintained at the Cook County Jail on the southwest side of Chicago, City of Chicago House of Correction and Central Headquarters of the Chicago Police Department at 11th and State Streets, five blocks from the Annex, and at several county jails in adjoining counties.

The Annex is designed for approximately 393 detainees awaiting trial and serving short-term sentences; it provides space for diagnostic services and medical, recreational, educational, dining, counseling and administrative facilities; it will include a community treatment cehter to administer a pre-release program, but each participant in the program will be screened and those with a history of assaults or affiliated with organized crime or otherwise classified as serious offenders will be, excluded; and the detention center will employ 153 persons whereas the parking facility will employ 24 persons.

Foley Square cost over $20 million, harmonized architecturally with existing area buildings, enhanced the appearance of the neighborhood, did not have fortress walls or steel-barred windows but instead had polycarbonate plastic shatter-proof windows of a dark gray color designed to insulate the community from visual contact with the detainees. Hanly I, 460 F.2d at 644; Hanly II, 471 F. 2d at 832.

The Chicago Annex will cost over $20 million; the design earned an honor award for excellence from the Smithsonian Institute upon the recommendation of the National Public Advisory Panel on Architectural Services; a large portion of the site will be a 26,300 square foot open plaza landscaped with trees and provided with benches for the public and well-lighted for both daylight and evening use by the public; the Clark and Congress Street sides of the site will also be lined with trees and planters; the entire ground level of the detention building will be a public lobby with large expanses of glass, lounge seating and a receptionist area. The neighborhood will be greatly enhanced; there will be no fortress walls or steel-barred windows; 5-inch wide windows, rigidly glazed with bronze-tinted tempered glass prevents persons in the plaza or otherwise outside from either being aware of activities in the facility or from communicating vocally or visually with persons inside the building.

The district court found:

“Every building, government or private, has an affect on the environment. This is particularly true of large buildings for commercial or institutional purposes. Yet the erection, completion, and occupancy of such buildings in the central city is traditionally considered a contribution to the quality of life worthy of commendation and expressions of appreciation from public officials representing the community. .
* * -x- * * *
“ . . . In making its determination of negative environmental impact, the General Services Administration had before it and considered information on the construction of the building, its conformity to the building codes, the adequacy of existing utilities proposed to be used, the availability and adequate supply of water, waste disposal facilities, gas, electricity and telephone service. Studies were made of the impact of the building on traffic, both on the side street which serves its entrance and which will be substantially widened and the major thoroughfares to which it is adjacent.
“From the record, it is clear that considered as a structure, the proposed U.S. Courthouse Annex and Federal Parking Facility has no more environmental impact on the quality of life in the Chicago urban community than any other of the well constructed, well designed buildings which are being erected in the city on a variety of sites. The extensive evidence in the record satisfies the Court that there has been no abuse of discretion in the GSA determination of no significant environmental impact by virtue of the design, construction, or location of this structure.”

The district court then closely analyzed the evidence and summarized it as follows: the essential contentions of the plaintiffs were that a “jail” and an 850-car parking facility have a significant environmental impact; plaintiffs’ witnesses were reluctant to state flatly that in their opinions the proposed facility would have a deleterious environmental impact; the impact upon the quality of life of a structure designated as a jail is none the less real because psychological; and a concern for public safety was expressed by some but not all of plaintiffs’ witnesses.

In Hanly II, the Court of Appeals considered the 25-page assessment by GSA and the evidence offered by the plaintiffs in that case and concluded that “[jjudged by the comparative uses in the area and according to its quantitative environmental effects, [the Foley Square detention center] should not have a significant effect upon the human environment”. 471 F.2d at 833. However, the Court remanded the case to require GSA to make a further investigation of two issues not considered by GSA or the district court: whether a drug maintenance program would be carried on at the Center with the attendant dangers of the presence of drug addicts, drug pushers and hangers-on and whether the risk of crime might be increased as a result of the operation of the center. Hanly II, 471 F.2d at 834, 836. As Judge McGarr noted in the present case, after the Hanly II remand “it must be assumed that the areas of concern to the Court were satisfactorily resolved at the District Court level . [because] the detention facility in issue was completed and is in use

In regard to the Chicago Annex, the GSA supplemental assessment expressly stated:

“The U.S. Courthouse Annex will not operate a drug maintenance unit. The Bureau of Prisons does not have a drug maintenance program at any Bureau operated community-based facility nor are any planned for the future.”

In regard to the Harily II issue of increased risk of crime, expressed in the Chicago Annex case as a concern for public safety, the district court found as follows:

“It is hardly necessary to observe that the criminals housed in the detention center are securely inside. Evidence of the security precautions connected with the use of part of the building as a prison, indicates more than adequate regard for public safety. Plaintiffs emphasize, however, that an area of greater concern lies in the visitation of this facility by probationers and parolees and other persons subject to accusation of crime and involved in the presentence investigation .or counseling processes. The evidence amply demonstrates, and the General Services Administration did not err in concluding, that this situation is not a significant environmental concern. Indeed plaintiffs’ witnesses, who were unstinting in their praise of the Everett McKinley Dirksen Building, were totally unaware that the same processes which they fear in the new building have been going on in the Dirksen Building since it has been open, and for many years in the old Courthouse which once stood across the street.”

In regard to traffic, GSA showed that there will average 4 ingresses and egresses per business day for service deliveries and two daily ingresses and egresses for detainee transportation, mostly at non-peak traffic hours; that of the 850 vehicles to be parked, '350 are federal vehicles already occupying downtown parking space and the additional vehicles will have little effect upon the 238,000 vehicles presently entering the downtown area; that the facility adjoins the Congress Parkway which feeds directly into all main arterial highways and the interstate highway system without requiring traveling through the loop area. The district court concluded:

“The evidence considered by the General Services Administration has as its principal thrust the fact that the additional parking made available in this building will not significantly increase the volume of traffic in and out of the Loop areas nor contribute significantly to congestion in the streets immediately surrounding the building. The General Services Administration reached this conclusion based upon this evidence. Having considered the same evidence, and additionally the testimony of plaintiffs’ traffic expert, Professor John Bailey, this Court cannot conclude that this administrative determination was an abuse of discretion or was in any way unreasonable or arbitrary.”

The district court found that GSA gave sufficient consideration to alternative sites; that under the circumstances of this case public hearings were not required but that GSÁ early disclosed its plans to the public and gave all interested parties ample opportunity to present their views and objections; that Sections 102(2) (A) and (D) were complied with and (B) and (C) were inappliéable (42 U.S.C. § 4332(2) (A), (B), (C) and (D) ); and that the future plans for the City of Chicago were not significantly adversely affected:

“Whether there is a significant and adverse environmental impact resulting from the construction of the U.S. Courthouse Annex and Federal Parking Facility must be considered in the context of the place of the project in the overall plan for urban renewal and development of the area immediately south of Chicago’s Loop, which was the subject of almost constant reference by plaintiffs and all of plaintiffs’ witnesses. The evidence reveals that development of this section of the city has been suggested to city planners by the recent availability for other purposes of some six hundred acres of land in the area immediately south of the Loop once utilized as a railroad yard. With the development of this land as the nucleus, broader plans have been formulated for the renovation of the entire area south of the Loop, commencing at a point somewhat south of the site of the building involved in the instant controversy and extending southward to approximately Roosevelt Road. The oft-referred-to plan is commendable but somewhat amorphous. It has not yet been published, nor was any copy of it available at the trial. According to the testimony of plaintiffs’ witnesses, it invplves the development of a ‘New Town-In Town’ concept embracing residential, commercial and industrial buildings made more desirable by their close proximity to the downtown area. The planners and the plans seem not to have been deterred by the fact that it will be contiguous with the Chicago Police Department Central Headquarters which also embraces a detention facility and supports the usual traffic of persons charged with crime going to and from the courts and administrative offices housed in that building.
“In contrast to the amorphous plan with which plaintiffs contend the proposed structure is not in harmony, are the present existing conditions surrounding the site.
******
“It is also apparent from the evidence that New Town-In Town will not, in its contemplated residential development, come closer than several blocks from the Courthouse Annex, even if the residential development were put at the northern-most extremity of the new project.”

Finally, the district court reached the ultimate conclusion that the GSA determination “was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law or without observance of procedure required by law.”

Ill

The Congressional declaration of national environmental policy expressed in NEPA is as broad as the mind can conceive. After speaking of the “overall welfare and development of man,” Congress declared that

“[I]t is the continuing policy of the Federal Government ... to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

42 U.S.C.A. § 4331(a) (Cum.Supp.1973).

Of necessity, NEPA must be construed to include protection of the quality of life for city residents (Hanly I, 460 F.2d at 647) particularly in view of “the profound influences of population growth, high-density urbanization, [and] industrial expansion .- . .” (42 U.S.C.A. § 4331(a)). Unfortunately, the environmental problems of the city are not as readily identifiable as clean air and clean water. The Council on Environmental Quality has noted:

“Life in the inner city embraces a range of environmental problems, some starkly evident, some disguised, some acknowledged as environmental, some wearing other labels. ******
“. . . [In the inner city] many of our most severe environmental problems interact with social and economic conditions which the Nation is also seeking to improve.
•x- * * •>:■ -x- -x-
“The traditional environmental objectives of clean air and water and preservation of national parks and wilderness are not the central concerns of most inner city poor. They focus instead on more immediate economic and social interest.
“. . . [Tjhere is growing evidence that among the urban poor — • those with the most to gain from environmental improvement — are some who have decided to embrace environmentalism in their own distinct way. Their use of the term environment is broader than the traditional definition. Their concept embraces not only more parks, but better housing; not only cleaner air and water, but rat extermination.
-X- * * -X- -X- *
“The variety of environmental problems of the inner city and the absence of simple answers to these problems make it particularly important that efforts to overcome them be tailored to the needs and priorities of each locality.”

These considerations mandate a balancing and weighing of multiple factors (Compare Scherr v. Volpe, 466 F.2d 1027, 1031 (7th Cir. 1972) with Arlington Coalition on Transportation v. Volpe, 458 F.2d. 1323, 1329-1330 (4th Cir. 1972)) in order to determine the cumulative and absolute effects of the project.

The United States Bureau of Prisons advised GSA that the Chicago Annex must be as close to the federal courthouse as possible in order to facilitate the transportation of detainees to and from the courts, to facilitate contacts between court staff and Annex staff on diagnostic' services, to provide close proximity for observation and study of cases, to allow for ready availability of detention staff to judges, to provide ready accessibility for legal counsel, law enforcement agencies and volunteers, to provide ready availability of public transportation for visitors, and to centralize the location of Bureau of Prisons regional activities in the urban area. All of these aims have a recognized beneficient effect on the quality of the human environment.

Unlike Foley Square, the Chicago Annex does not replace an existing detention center but rather creates a separate centralized detention center for persons awaiting trial who otherwise would be scattered throughout Cook and adjoining counties in ordinary city and county jails as part of the general prison population. In concept, the Chicago Annex facility reflects the real and significant difference between the function of pre- and post-trial detention. It represents a progressive solution to a perplexing problem.

The problem of the pre-trial treatment of persons charged with crime but not convicted and thus presumed innocent has plagued society at least since the time of Blackstone, who observed:

“[This] imprisonment, as has been said, is only for safe custody, and not for punishment; therefore, in this dubious interval between commitment and trial, a prisoner ought to be used with utmost humanity; and neither loaded with needless fetters, nor subjected to other hardships than such are requisite for the purpose of confinement only.”

The Introduction to the Standards Relating to Pretrial Release of the American Bar Association Project on Standards for Criminal Justice notes that “ [d] efendants presumed innocent are subjected to the psychological and physical deprivation of jail life, usually under more onerous conditions than are imposed on convicted defendants.”

The Report of the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 179 (1967) recommended “[w]herever possible, persons awaiting trial should be housed and handled separately from offenders.” This recommendation was based on a task force conclusion that “[i]t is probably true that persons who have not yet been convicted of a crime, are subjected to the worst aspects of the American correctional system.” See, e. g., Anderson v. Nosser, 456 F.2d 835, 841 (5th Cir.1972).

The Chicago Annex is a facility needed by that portion of Society it is designed to serve. Although .in a sense it is a jail, it will not have walls nor bars nor striped-clothed inmates, but instead will be operated in an attractive building with its detention aspects wholly masked from public view'and carried on in the same unobtrusive manner as detention activities are presently performed in the Everett McKinley Dirksen Building.

Since the Bureau of Prisons, GSA and Congress have determined the need and. the plaintiffs have not questioned the need, the only real question is where such a facility should be placed. It could not serve its function in a rural community; it could serve its functions to a lesser degree but obviously not blend environmentally in the residential urban areas outside of the downtown area; the facility could only be placed in the downtown section where the relatively few residents are in hotels and clubs, where the building blends into the courthouse — government—office building complex and serves its functions to the maximum degree, and where it upgrades and enhances what had become a blighted area.

The major environmental obstacle in Foley Square was the presence of some 50,000 residents in close proximity to the proposed center, including 3,000 in the apartment buildings 100-150 feet away. The court there was concerned with “the peculiar environmental impact of squeezing a jail into a narrow area directly across the street from two large apartment houses,” with families fearing “riots and disturbances” (Hanly I, 460 F.2d at 646), and with “the sensibilities of a neighborhood” (Hanly II, 471 F.2d at 835). Here the district court found no present, nor forseeable future possibility of, close proximity to residential areas. The court further found that “when, if ever, this New Town- — In Town project will commence,” its contemplated residential development will not come closer than several blocks from the Annex.

IV

Upon analysis of the Chicago Annex in the context of the Hanly cases, certain conclusions inexorably emerge.

As the agency responsible for the acquisition of the site, the design and construction of the buildings, and their ultimate operation, GSA was the appropriate body to make the original determination as to environmental impact. Hanly I, 460 F.2d at 645.

There appears to be no dispute that this $20 million project is a “major Federal action” even as the Foley Square $20 million project was conceded to be a major action. Hanly II, 471 F.2d at 826-827. ■

In making the threshold determination of whether the Chicago Annex was one of those “major Federal actions significantly affecting the quality of the human environment” requiring a detailed environmental impact statement (42 U.S.C.A. § 4332(2) (C)), GSA was required to "affirmatively develop a reviewable environmental record.” Hanly I, 460 F.2d at 647; Hanly II, 471 F.2d at 827, 836. Upon remand in the present case, the GSA made that kind of a record.

Both GSA and the district court, after weighing and balancing all of the pertinent environmental factors, have determined that the Chicago Annex does not “significantly affect the quality of the human environment.” The GSA has some expertise in this area (cf. Butz v. Glover Livestock Commission Company, Inc., 411 U.S. 182, 93 S.Ct. 1455, 36 L. Ed.2d 142 (1973); Moog Industries, Inc. v. F. T. C., 355 U.S. 411, 413, 78 S. Ct. 377, 2 L.Ed.2d 370 (1958)) and its determination must stand unless its findings are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or without observance of procedure required by law.

The district court, after two evidentiary hearings and a carefully considered opinion incorporating its findings and. conclusions, determined that the GSA findings were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or without observance of procedure required by law. Every issue raised on appeal was considered by the district, court, its findings of fact are not “clearly erroneous” (Fed.R.Civ.P. 52(a)), and our view of the record mandates the conclusion that its findings and its conclusions of law are correct. Transcontinental Gas Pipe Line Corp. v. Hackensack Meadowlands Dev. Comm’n, 464 F.2d 1358, 1364 (3rd Cir. 1972). i

The judgments of the district court denying the preliminary and permanent injunctions are affirmed.

Affirmed.

      . The Hanly II court articulated more fully the factors underlying this holding as follows :
      “The office building would not differ substantially from the makeup of the surrounding area. Nor would it in absolute terms give rise to sizeable adverse environmental effects. Most of the employees occupying the building would merely be transferred from the existing Courthouse where the newly created space will be used primarily for courtrooms and desperately needed office space for court personnel.”

        Hanly II, 471 F.2d at 832.

      . Section 102(2) (C) (42 U.S.C.A. § 4332 (Cum.Supp.1973) ) provides:
      “The Congress authorizes and directs that, to the fullest possible: . . . (2) all agencies of the Federal Government shall—
      “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall con-suit with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;. . . .”

      . While speaking in terms of normative conditions, we understand from the inclusion of factor (2) that the standard for invoking the scrutiny of the full-scale procedure goes beyond protection and preservation of the environmental status-quo.
      This two-part test is designed to avoid se-mantical battles over the meaning of “significantly” by substituting more precise factors to be taken into consideration in making the threshold determination. Hanly II, 471 F.2d at 831.

      . The Annex is one block from the Everett McKinley Dirksen Building, one block from the Federal Building — U.S. Post Office, across the street from the 536 South Clark Street Federal Building, five blocks from the Main Post Office and six blocks from the U. S. Customhouse.

      . In the downtown Chicago business area, there are only three buildings with open plazas : the Civic Center Building, The First National Bank Building and the Federal Building — U.S. Post Office.

      . 2 Council on Environmental Quality Ann.Rep. 189-91 (August, 1971).

      . The selected site is one block away.

      . 4 Blackstone, Commentaries 300 (1765).

      . Approved Draft at 2-3 (1968). See Research and Policy. Committee of the Committee for Economic Development, Reducing Crime and Assuring Justice, A Statement on National Policy 40-41 (June, 1972) :
      “PRETRIAL DETENTION of those unable to obtain bail, and not released on their own recognizance or to specific custody, is largely the responsibility of 4,000 local jails. These also house persons convicted of minor offenses, with short sentences. Prisoners are held for months or years awaiting trial; convictions often lead to prison sentences shorter than the time already spent in jail. Meanwhile, the innocent and first offenders are thrown together with habitual criminals and frequently subjected to sexual assault. . . .
      “Many of these jails are old, below acceptable physical standards. Worse, they lack recreational, educational, or medical facilities. Many are too small to be efficient; others, although large, are extremely overcrowded. Jailers and guards are rarely qualified. The corrective or curative element in these jails is nonexistent, but their ability to foster antisocial attitudes and to function as schools for crime is well documented.
      “Constitutionally, persons charged with crime are presumed innocent until tried and found guilty, and should be treated accordingly.”

      . The Report added at 178:
      “No part of corrections is weaker than the local facilities that handle persons awaiting trial and serving short sentences. Because their inmates do not seem to present a clear danger to society, the response to their needs has usually been one of indifference. Because their crimes are considered petty ' and the sentences they serve are relatively short, the corrections system gives them low status. Many local jails and misdemeanant institutions are administered by the police or county sheriffs, authorities whose experience and main concern are in other fields. Most facilities lack well-developed recreational and counseling programs, sometimes even medical services. The first offender, the innocent awaiting trial, somtimes juveniles and women are imprisoned with confirmed criminals, drunks, and the mentally disturbed or retarded.”

      . President’s Commission . on Law Enforcement and Administration of Justice, Task Force Report: Corrections 24 (1967) :
      “For those who must be detained, the Commission recommends where possible the maintenance of entirely separate facilities. In a large city this might be economically feasible; in smaller jurisdictions full separation will be much more difficult. Even here, however, efforts should be made to avoid confining youthful or first offenders with others.”
      “It is probably true that persons who have not yet been convicted of a crime are subjected to the worst aspects of the American correctional system. Unconvict-ed persons, as yet legally innocent are almost inevitably subjected to the tightest security and receive the least attention of any group in jails.
      * * * * *
      “. . . Detention facilities for uncon-victed persons are usually the worst of all institutions and are operated under maximum-security conditions.
      “This primary concern for security imposes regimentation, repeated searches, and close surveillance on detainees. Most jails also have poor facilities for visiting, thus hampering a detainee’s efforts to arrange for his defense and maintain contacts with the community. A detainee’s lawyer, family, and friends have little opportunity for privacy.”

      . This is not a case of erecting a fenced prison with guard towers in a “historical and architecturally significant rural community” laced with historical landmarks. Ely v. Velde, 451 F.2d 1130, 1133-1134 (4th Cir. 1971).

      . In considering the unobtrusive design of this facility, we do not make further use of this aspect than to note that the center will be in visual harmony with the immediate vicinity. In the Hanly litigation and in this case, the “sensibilities” of the neighborhood have been a factor which the plaintiffs have asserted relates to the environmental impact of the project. As the court in Hanly II observed, “[i]t is doubtful whether psychological and sociological effects upon neighbors constitute the type of factors that may be considered in making such a determination since they do not lend themselves to measurement.” 471 F.2d at 833. As regards public “sensibilities” aroused by criminal defendants, we question whether such factors, even if amenable to quantification, are properly cognizable in the absence , of clear and convincing evidence that the safety of the neighborhood is in fact jeopardized.

      . And would not be any more welcome there. See n. 12 supra.

      . GSA gave consideration to locating the proposed detention center in the Fifth U.S. Army Headquarters Building, about six miles south of the Chicago loop, but this location was in the Hyde Park-Kenwood Urban Renewal Project area and its director advised that the City desired this area to be used for residential purposes only, specifically high-rise apartments.

      . “For instance, one more highway in an area honeycombed with roads usually has less of an adverse impact than if it were constructed through a roadless public park.” Hanly II, 471 F.2d at 831.

      . This fear was considered minimized in Hanly II by GSA’s expanded assessment establishing the unobstrusiveness blending and security of Foley Square. The court also found that during the past five years there had been only two small inside disturbances at the then existing detention center and three outside disturbances consisting of non-violent picketing. Hanly II, 471 F.2d at 833. There have been no inside or outside disturbances involving federal prisoners at the Cook County Jail in Chicago where the majority of federal detainees are presently housed.

      . The district court found “no strong element in this case of the ‘sensibilities of a neighborhood’ which was an acute problem in Hanly . . .” See n. 13 supra.

      . In Hanly II, the court repeatedly referred to the 25-page environmental assessment as satisfying GSA’s responsibility for developing the record (subject to the two issues which were satisfied later). “The Assessment closely parallels in form a detailed impact statement.” Hanly II, 471 F.2d at 832. We have read the Foley Square assessment and have compared it with the 142-page supplemental assessment in this case. While-the two .statements cannot be weighed by the number of pages, it is readily apparent by content comparison that here GSA not only considered every element earlier considered for Foley Square but many additional factors as well. The analysis also appears to be more penetrating and critical. It is obviously not a “rewrite” of the original 4-page draft. Cf. Hanly II, 471 F.2d at 833.


text:
    The RUPP FORGE COMPANY, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD.
    No. 73-1233.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 8,-1973.
    Decided Oct. 16, 1973.
    Joseph S. Ruggie, Jr., Thompson, Hiñe & Flory, Cleveland, Ohio, on brief, for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Joseph E. Mayer, Stuart M. Rosenblum, Attys., N. L. R. B., Washington, D. C., on brief, for respondent.
    Before WEICK, McCREE and MILLER, Circuit Judges.
   Petition for Enforcement of Order of the National Labor Relations Board

This is a petition to review and a cross-petition to enforce the order of the National Labor ■ Relations Board invalidating an election lost by the Union, United Steelworkers of America, AFL-CIO, on June 25, 1971, ordering a new election, and ordering the reinstatement of employees Huggins, Austin and Hurst. The Board’s conclusions were based primarily upon the findings and recommendations of the Trial Examiner. The evidence on the material questions involved was conflicting and the Trial Examiner and the Board resolved most but not all of the conflicts in favor of the union.

After a careful examination of the record, including the briefs of the respective parties and the oral arguments, we are of the opinion that the Board’s order and findings are supported by substantial evidence on the basis of the record considered as a whole.

It is therefore hereby adjudged that the Board’s order of January 24, 1973, be enforced, and that the petition to review of the Rupp Forge Company be and the same is hereby denied.


author: PER CURIAM:

text:
    Elisha HAM, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2175.
    United States Court of Appeals, Fifth Circuit.
    Oct. 19, 1973.
    Barry Scott Richard, Arnold R. Ginsberg, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
    Before BELL, GODBOLD and GEE, •Circuit Judges.
   PER CURIAM:

The decision of the District Court denying habeas relief for failure to exhaust state remedies is affirmed. Cf., on the merits, Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure, Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981.


text:
    TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Inc. v. The UNITED STATES.
    No. 127-62.
    United States Court of Claims.
    Oct. 17, 1973.
    Sidney Bender, Washington, D. C., attorney of record, for plaintiffs. Aaron Lewittes, Leventritt Lewittes & Bender, New York City, of counsel.
    Michael W. Werth, Washington, D. C., with whom was Acting Atty. Gen. Irving Jaffe, for defendant.
    Before COWEN, Chief Judge, LARA-MORE and DURFEE, Senior Judges, and DAVIS, SKELTON, and NICHOLS, Judges.
   OPINION

PER CURIAM:

This is a patent suit under 28 U.S.C. § 1498, involving U.S. Patent 2,706,697. After denial of defendant’s pre-trial motions for summary judgment (Techno-graph Printed Circuits, Ltd. v. United States, 370 F.2d 571, 177 Ct.Cl. 919 (1966) ; id., 372 F.2d 969, 178 Ct.Cl. 543 (1967) ), the case went to trial on the issue of validity before former Trial Judge James F. Davis. In a decision filed March 2, 1970 (including opinion, findings and recommended conclusion of law), he concluded that the disputed claims of patent ’697 are invalid for obviousness under 35 U.S.C. § 103. 164 U.S.P.Q. 584. Plaintiff excepted to this decision, briefs were filed, and oral argument was had before the court in December 1970.

Before a decision was rendered, the Supreme Court handed down, on May 3, 1971, its ruling in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788. Very shortly thereafter, we asked for the filing of additional briefs on the applicability of that decision to this case since there had been a previous holding of invalidity with respect to patent ’697 in Techno-graph Printed Circuits, Ltd. v. Bendix Aviation Corp., 218 F.Supp. 1 (D.Md. 1963), aff’d per curiam, 327 F.2d 497 (4th Cir.), cert, denied, 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36 (1964). Such briefs were filed by both sides.

We have held the ease pending decisions in the Fourth and Seventh Circuits (in litigation by plaintiffs against private parties) on precisely the same Blonder-Tongue issue with respect to patent ’697 and the impact of Bendix Aviation Corp., supra. Decisions have now been rendered in both circuits at the trial and appellate levels. These rulings are adverse to plaintiffs, holding that under Blonder-Tongue the plaintiffs are es-topped by Bendix from contesting the validity of the relevant claims of patent ’697. In the Fourth Circuit, Judge Watkins so ruled (in March 1972) in the District Court for the District of Maryland. Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 340 F. Supp. 423. This was affirmed by the Court of Appeals in February 1973. Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 474 F.2d 798. (4th Cir.). In the Seventh Circuit, Judge Will made the same ruling (in May 1972) in the Northern District of Illinois. Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 174 U.S.P.Q. 297. This decision was recently affirmed (on August 27, 1973) by the Court of Appeals. Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 484 F.2d 905 (7th Cir.)

We have considered the extensive briefs and written arguments of the parties on the Blonder-Tongue question, and the opinions of Judges Watkins and Will and of the Courts of Appeals for the Fourth and Seventh Circuits. We agree fully with the holdings that under Blonder-Tongue plaintiffs are estopped by the Bendix decision. Plaintiffs make the same arguments before us as were made in the Fourth and Seventh Circuit litigations. There is no need for further briefing or for oral argument, and it would be needless repetition for us to spread out again the persuasive reasons given in the opinions filed in the other courts. On the basis of those opinions, we hold plaintiffs estopped from contesting the invalidity of all the claims of patent ’697 which are in issue. It follows that there can be no recovery under patent ’697 and the petition with respect thereto is dismissed.

Trial Judge Davis’ opinion, in footnote 1, states that at that time there was still in issue another patent, No. 2,662,957, and that the parties had agreed to defer trial on the ’957 patent until this court’s ruling on patent ’697. If plaintiffs still wish to proceed in this court on patent ’957, they should so inform the court within thirty (30) days of this date. If such notification is given, the case will be remanded to a trial judge for further appropriate proceedings with respect to patent ’957; otherwise the petition will also be dismissed as to that patent.

      . After the decision of the Fourth Circuit, plaintiffs filed an additional paper challenging that decision.


author: PER CURIAM.

text:
    PACQUIN-LESTER COMPANY, Appellant, v. CHARMACEUTICALS, INC., Appellee.
    Patent Appeal No. 8962.
    United States Court of Customs and Patent Appeals.
    Aug. 9, 1973.
    Oliver P. Howes, Jr., Nims, Halliday, Whitman, Howes, Collison & Isner, New York City, attorneys of record, for appellant.
    Sheldon I. Cohen, Washington, D.C., amicus curiae.
    Donald A. Kaul, Washington, D.C., attorney of record, for appellee. Roylance, Abrams, Berdo & Kaul, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This appeal is from the decision of the Trademark Trial and Appeal Board, dismissing appellant’s opposition to appellee’s application, for registration of the mark shown below, for face cream:

Silk

CA82321

Opposition was based on prior use and registration of the mark SILK ’N SATIN, for “beauty lotion for hands and skin,” and for “bath oil and a lotion for hands and skin.”

The board considered the goods of the parties to be closely related. It considered a number of third party registrations cited by appellee, and stated:

[W]e cannot ignore the fact that “SILK” is suggestive as applied to products designed to give the user thereof a soft or smooth skin, and that is is for this reason that others have apparently adopted “silk” as a part of their marks in this field.

The board considered the differences between the marks sufficient to preclude likelihood of confusion.

We agree fully with the reasoning and the decision of the board. The obvious substantial differences between the marks are enough to prevent any reasonable likelihood of confusion, mistake or deception when the marks are applied to the respective goods, especially considering the suggestive nature of the term SILK which appellant admits to exist in this field.

The decision of the board is affirmed.

Affirmed.

      . Abstracted at 168 USPQ 543 (1970).

      . Serial No. 305,267, filed August 16, 1968.

      . Registration No. 691,038, registered January 5, 1960.

      . Registration No. 813,619, registered August 23, 1966.


author: ALMOND, Senior Judge.

text:
    SCANWELL LABORATORIES, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Appellee.
    Patent Appeal No. 8988.
    United States Court of Customs and Patent Appeals.
    Sept 13, 1973.

      John M. Calimafde, New York City (Sandoe, Hopgood & Calimafde, New York City), for appellant.
    T. Hayward Brown, Louise O’Neil, Washington, D. C., for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Patent Office Trademark Trial and Appeal Board, 170 USPQ 174 (1971), which granted appellee’s petition under 15 U.S.C. § 1064 to cancel appellant’s registration of the mark:

V-RING

for “Directional antennas for use with instrument landing systems.”

Appellant, Scanwell Laboratories, Inc. (Scanwell) is a manufacturer of air navigational aids such as instrument landing systems including antennas. On March 30, 1962, it submitted an unsolicited proposal to appellee, Department of Transportation, Federal Aviation Administration (FAA), for a low cost instrument landing system. The FAA accepted the proposal and a contract for development of such a system was entered into between the parties on June 14, 1962.

The development contract contained the following provision, the pertinence of which to this appeal will become apparent later:

The Contractor shall not affix any restrictive markings upon any Subject Data, and if such markings are affixed, the Government shall have the right at any time to modify, remove, obliterate or ignore any such marking.

The system developed in accordance with this contract utilized an array of fifteen directional antennas each of which included a loop or ring shaped radiating element that was shielded by a V-shaped parasitic reflector element. A prototype of this system was completed in time for a photograph of it to be exhibited on September 16, 1963, at an FAA sponsored research and development symposium held in Atlantic City, New Jersey.

According to the record, the photograph was labelled with a captioned card. The caption, all of which was in upper case letters, read in part:

V-RING LOCALIZER ANTENNA FOR THE FUTURE

Although the testimony varied as to the content of the balance of the caption, it was established that the card identified Scanwell as the manufacturer. Appellant relies on this label as its first use of V-Ring as a trademark.

In November 1963 a test installation of the system was made at an airport serving Jackson, Mississippi. This was followed by a permanent installation at that site in February 1964. Witnesses for appellee testified that the term “V-Ring” was used at that time to designate the antenna elements but they were not aware that it was regarded by Scan-well to be a trademark.

Because of the satisfactory nature of the tests of the landing system, FAA purchased additional units from Scan-well. These units were labelled according to FAA specifications. The labels employed by Scanwell to identify its system took the following form:

The record suggests that a similar label was employed by other manufacturers of the same landing system for FAA as a result of competitive bidding. When such use occurred is not revealed in the record.

During the course of their relationship, various documents were generated by the parties to this appeal. In them the antenna system is referred to in a variety of ways including the following:

Directional V-Ring Localizer Antenna Array
directional V-Ring localizer antenna array
V-Ring array
SCANWELL V-RING DIRECTIONAL LOCALIZER EQUIPMENT
V-Ring directional localizer system
V-Ring antenna elements

These documents included instruction manuals prepared for the FAA in accordance with the contract.

One of these documents was a “Selection Memorandum” prepared by the FAA describing the landing system and recommending that it be incorporated into the national system of landing aids. That memorandum, issued March 23, 1964, was available to the public, particularly FAA contractors. Scanwell had actual knowledge of its existence. The memorandum did not indicate that Sean-well was developer of the system it described as a “Directional V-Ring Local-izer Antenna Array.”

In addition to supplying the FAA with antenna units in accordance with their contract, Scanwell was engaged in efforts to market the system to other purchasers. One such sale was made on September 28, 1964, to the Canadian government. According to appellant, the equipment provided in that sale bore the trademark “V-Ring.” The physical context in which the trademark appeared is not shown in the record. However, since the sale is alleged by appellant to be its first use of the trademark in commerce, presumably the mark was used in the same or a similar form to that appearing in the board opinion at 170 USPQ 175, a reproduction of a sample label provided the Patent Office showing how the goods are identified in commerce. On that label the following legend appears:

DIRECTIONAL V-RING ANTENNA ARRAY

Following it and in slightly smaller letters is:

SCANWELL LABORATORIES, INC.

Although it was aware of the manner, outlined above, in which the FAA had used V-Ring, Scanwell made no objection until February 12, 1969, when it wired FAA requesting that:

* * * when your office uses the mark, we ask that you indicate the mark is registered and owned by Scanwell Laboratories, Inc.

In view of this record, the board concluded that Scanwell’s registration should be cancelled. It reasoned as follows:

It is abundantly clear from the record in this case that the term “V-RING” aptly describes the configuration of the primary components of the antennas used in the instrument landing system developed for the FAA by Scanwell, as it likewise is that the assertion by Scanwell of a proprietary interest in the term is in contravention of the provisions of Subpara-graph G of Article I of the agreement between the parties hereinbefore referred to.
Moreover, it is also clear that Scan-well has used the term “V-RING” upon the nameplates for and in the advertising of its product not as a trademark for the product but merely as a part of the descriptive name therefor which was approved by the FAA.

OPINION

Appellee, and the board in reaching its decision, relied, inter alia, on the contract provision referred to supra barring “any restrictive markings upon any Subject Data.” We find the reliance to be misplaced.

The contract defines “Subject Data” as follows:

The term “Subject Data” as used herein includes writings, sound recordings, pictorial reproductions, drawings or other graphical representatives, and works of any similar nature (Whether or not copyrighted) which are specified to be delivered under this contract.

The quoted provisions make it clear, we think, that the Government has a right to ignore markings applied to data supplied the Government indicating that they are to be kept secret or given but limited circulation. In our view these provisions cannot be construed to preclude a manufacturer from affixing a trademark to goods supplied under a contract which would merely distinguish his goods from those of other manufacturers.

In the first place, a finished article of hardware is not of a “similar nature” to those items specified by the contract as “Subject Data.” Secondly, the use of the trademark in contracts, reports, etc. which clearly are “Subject Data” or on the goods themselves does not restrict the Government from using these items as it sees fit.

Nevertheless, despite the misconstruction by the board of the contract provision, we affirm the board’s decision granting the petition to cancel the trademark. In our view the record supports the conclusion that Scanwell used V-Ring as descriptive of the antenna elements and acquiesced in the FAA use of that mark in the same way.

Appellant has argued that V-Ring is not descriptive of the antenna elements because a circular antenna element is known in the art as a “loop” antenna and a “V” antenna as known to the art does not encompass a V-shaped reflector.

Assuming, arguendo, the truth of these assertions, and support for them is found in the record, it might very well be that “V-Ring” would not be inherently descriptive of the goods involved. However, as the board pointed out, the term “aptly describes the configuration of the primary components of the antennas” and we have no doubt “V-Ring” if used in a manner which fails to indicate that it is regarded as a trademark would readily be understood to describe antennas of the type involved here. A party seeking trademark rights must, therefore, exercise some degree of caution to prevent an admittedly novel but suggestive term from becoming descriptive.

In the instant case we do not believe that the labels applied to the photograph of the prototype or actual units of the system can be regarded as a trademark use of “V-Ring.” In the first place the lettering on these labels displays the alleged trademark with other clearly descriptive terms such as “directional,” “antenna array” and “localizer antenna” with lettering of identical size. Secondly, no symbol or other indication is used designating it to be a trademark. The record also reveals that there existed numerous other antenna configurations used as directional antennas. Therefore, in the absence of some clear indication of trademark usage, it is likely that V-Ring, in the context of these labels, will be regarded as a term distinguishing one antenna array from others by type rather than origin. In that respect it would be descriptive of the goods.

With regard to the documents generated by FAA and Scanwell, none prepared before appellant filed its application to register V-Ring include a specific indication, for example a symbol, that it was regarded as a trademark. However, appellant has argued that “V-Ring” has consistently been capitalized by it and FAA. From our review of the record this would appear to be true but this fact alone would not constitute a trademark usage if in context its use was descriptive rather than indicative of source or origin. See Clairol, Inc. v. Roux Distributing Co., 280 F.2d 868, 47 CCPA 1165 (i960).

In our view the documents of record and testimony of witnesses support the board’s conclusion that V-Ring was used by both FAA and Scanwell to describe the antenna array. In reaching this conclusion we have not ignored two of appellant’s exhibits indicating by use of the symbol ® that V-Ring was regarded as a trademark. However, both of these 3 bear dates later than the filing date of the application. As we indicated above, by that time the parties involved here had established a pattern of use by which V-Ring was employed to describe the antennas.

For the foregoing reasons, the decision of the board is affirmed.

Affirmed.

      . Reg. No. 814,353, issued September 6, 1966.

      . According to a witness for appellant, one of these, an advertising brochure, was distributed at an air show in June 1965, more than one year before the registration was granted.


text:
    Application of David L. KLEINMAN et al.
    Patent Appeal No. 9014.
    United States Court of Customs and Patent Appeals.
    Sept. 13, 1973.

      Frank A. Steldt, St. Paul, Minn., for appellants. Alexander, Sell, Steldt & DeLaHunt, St. Paul, Minn., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Fred E. McKelvey, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection under 35 U.S.C. § 103 of claims 27-32 of appellants’ application entitled “Adhesive System.” We affirm that decision.

The nature of appellants’ invention is apparent from a consideration of claim 27, the broadest claim on appeal, set forth below:

27. A composition of matter useful for application to injured mammalian tissue, consisting essentially of a solution of a monomer having the formula
.CN ch2«=c / V C02R
wherein R is alkyl, cyclohexyl, phenyl, 2 (2,2,2-trifluoroethoxy)-ethyl, 1,1,1-trifluoroisopropyl or CH2R' wherein R' is a radical of the group consisting of phenyl, alkylthioalkylene, alkoxy-alkylene, unsubstituted alkyl groups, and halogenated alkyl groups, said radical having from 1 to 7 carbon atoms in anhydrous halogenated propellant at autogenous pressure, the ratio of monomer to propellant being from about 1:15 to 5:1 and the composition optionally containing an inhibitor for polymerization of said monomer, said autogenous pressure being of an order of magnitude of about 45 psi but less than such higher pressure as will cause physical damage to tissues when said composition is sprayed thereon.

The remaining claims on appeal depend from claim 27 and add limitations not pertinent to our resolution of this case.

According to appellants’ specification, the composition defined by claim 27 is intended to be contained in an aerosol package from which it is sprayed onto wounded tissue. Moisture present in the treated tissue causes the monomer, an alpha-cyanoacrylate ester, to rapidly polymerize and form a film over the sprayed area. The properties of the film are such that it can be used to stop bleeding and close wounds without the use of sutures.

In reaching its decision that the claimed invention would have been obvious within the meaning of § 103, the board relied upon the following refer-enees cited by the examiner:

Jeremías 2,763,677 Sept. 18, 1956

Joyner 2,784,215 Mar. 5, 1957

Reed 2,968,628 Jan. 17, 1961

Briskin 2,972,545 Feb. 21, 1961

Von Fieandt et al 3,269,903 (Von Fieandt) Aug. 30, 1966

In addition to these references, the board also relied upon French Patent 1,174,825 having an effective date as a reference of November 10, 1958. This patent was cited by appellants’ attorney at oral hearing before the board.

Jeremías and Joyner disclose that it was known to the art to polymerize alpha-cyanoacrylate esters to form films by merely exposing a thin layer of the monomer to the atmosphere. Reed relates to a propellant composition for aerosol sprays and discloses that halocar-bons are used as propellants. Briskin and Von Fieandt describe compositions for treating wounds comprising preformed polymers that can be dispensed from aerosol spray devices.

The French patent relates to the packaging of polymerizable monomers and propellant in aerosol containers. Although none of the monomers disclosed by this reference would encompass alpha-cyanoacrylate esters, a number of monomers are described which undergo polymerization catalyzed by atmospheric moisture when discharged from the container. Representative propellants listed in the text include halogenated materials. The reference also makes it clear that these monomers are stable if an anhydrous condition is maintained within the container and, where necessary, a polymerization inhibitor is included in the aerosol composition.

As additional evidence of the state of the prior art the board also relied upon certain statements in appellants’ specification indicating what was known when their invention was made. These statements indicate that it was known to spray a monomeric alpha-cyanoacrylate ester onto injured tissue, albeit using an air gun, and that the monomer would quickly polymerize to form a film useful for stopping bleeding and closing wounds.

In view of the art cited by the examiner and the characterization of the prior art in appellants’ specification, we think the board was amply justified in reaching the conclusion that:

* * * it would be obvious to one skilled in this art to employ the aerosol spraying techniques exemplified in the secondary references, Reed, Bris-kin and Von Fieandt et al. to apply the thin film of monomer for the purposes of the cited art.
•)f # -3? *3? *3f "3fr
If there were any question as to the obviousness of aerosol dispensing of a monomer it would be resolved by the patent adduced at the hearing by appellants, the French Patent 1,174,825 (November 10, 1958).

Appellants have raised numerous arguments to counter the position of the board. In essence they amount to the assertion that their composition is not obvious since the art does not disclose that alpha-cyanoacrylate esters are soluble in halogenated propellants nor suggest that they be dispensed by aerosol spraying techniques. In view of the fact that halogenated materials are routinely used as propellants, and that the French patent teaches the use of aerosol spraying to dispense reactive monomers, we do not believe that the omissions from the art alluded to by appellants are significant.

Appellants also contend that the prior art teaches away from their invention since it was considered necessary to use a spray atomizer to dispense the monomer whereby the propellant, in this case air, was maintained separate from the monomeric alpha-cyanoacrylate ester. On this point we find ourselves in agreement with the solicitor who argues that while the prior art used a spray atomizer there is no indication that it was essential to do so in the art properly before this court.

In further support for their position that the claimed invention would not have been obvious, appellants point out that monomeric alpha-cyanoacrylate esters and the corresponding polymers were known at the time of the filing of the French patent as shown by the Jere-mías patent. In view of this they argue that “Had it been obvious to consider cyanoacrylate monomers as suitable for spraying with aerosol propellants, the French patent disclosure surely would have included it.” In their view this conclusion is justified because “The pat-entees of the French patent are presumed to have known of that patent [Jeremías] and the cyanoacrylate monomers and polymers.” As support for this argument they cite Dor-Seal Ltd. v. Commissioner of Patents, 240 F.Supp. 857 (D.D.C.1965).

We find no merit in this position. While it is true that the hypothetical person of ordinary skill in the art against whose knowledge the question of obviousness is weighed is legally presumed to know all the relevant prior art, In re Boyer, 363 F.2d 455, 53 CCPA 1497 (1966), there is no presumption, rebuttable or not, that the holder of a patent had constructive or actual knowledge of that same art when he made the invention. Of course it might very well be a significant point in weighing the content of a patent as a reference if it can be demonstrated that an inventor had actual knowledge of relevant art. However, that situation does not confront us in this case. '

In their brief appellants also discuss certain references not relied upon by the board which they contend support their arguments in regard to the patent-ability of the appealed claims. Their position relative to these references is that it is their right to have them considered as evidence of the state of the art citing our decision in In re Thompson, 438 F.2d 613, 58 CCPA 966 (1971).

However, as the solicitor points out, these references were made of record by the appellant on the very day the board rendered its decision. Furthermore, appellants did not request reconsideration by the board of its decision based on this art. In view of those circumstances, we do not believe it was incumbent upon the Patent Office to reopen the prosecution of the application now before us and we decline to evaluate the board’s decision in light of those references.

For the foregoing reasons we have not been persuaded of error in the board’s decision. Accordingly, it is affirmed.

Affirmed.

      . Serial No. 638,407 filed May 15, 1967.