author: PER CURIAM: LYDON, Trial Judge:

text:
    The FIDELITY & CASUALTY COMPANY OF NEW YORK v. The UNITED STATES.
    No. 329-69.
    United States Court of Claims.
    Jan. 23, 1974.

      Thomas M. Gittings, Jr., Washington, D. C., attorney of record, for plaintiff. John B. Harris, Jr., Macon, Ga., of counsel.
    Robert H. McKnight, Jr., with whom was Asst. Atty. Gen. Scott P. Cramp-ton, for defendant. Gilbert E. Andrews and Joseph Kovner, Washington, D. C., of counsel.
    Before NICHOLS, KASHIWA, and KUNZIG, Judges.
   OPINION

PER CURIAM:

This ease comes before the court on plaintiff’s exceptions to a recommended decision filed February 22, 1973, by Trial Judge Thomas J. Lydon pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel. Since the court agrees with the decision, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

LYDON, Trial Judge:

Plaintiff, a New York surety company, authorized to do business in the State of Georgia, seeks to recover $24,-287.57, plus interest, representing federal income and F.I.C.A. (social security) withholding taxes it paid on behalf of a contractor, Stradtman-Georgia Construction Company, to whom it had furnished payment and performance bonds attendant to contracts which the contractor had with the cities of Macon and Brunswick, Georgia. Plaintiff’s claim is grounded on the contention that it paid said taxes under duress.

It is my opinion that plaintiff is not entitled to recover.

The detailed and separate findings of fact accompanying the trial judge’s opinion set out the relationship and dealings between plaintiff and the contractor, as well as between plaintiff and the Internal Revenue Service (IRS). Only a brief summary of the facts are set forth in this opinion.

The contractor entered into “Contract C-1963” with the city of Macon, Georgia, on March 26, 1964, where, for the contract price of $678,247.05, it agreed to construct sanitary sewage system improvements. On July 8, 1964, the contractor entered into “Contract D” with the city of Brunswick, Georgia, where, for the contract price of $34,512.25, it agreed to construct improvements to a sanitary sewage system. Plaintiff furnished the contractor with payment and performance bonds covering both contracts'.

In mid-December 1964, the contractor advised plaintiff it would be unable to complete either contract unless it received financial assistance. The contractor was considered competent, capable and honest, and those city officials who were in charge of contract performance, on the Macon contract in particular, were extremely anxious to keep it on the job. Plaintiff assured itself that the contractor could complete both contracts with financial assistance.

Having decided to extend financial assistance to the contractor, plaintiff took immediate steps to protect its interests. The contractor was required to execute a series of agreements whereby its assets were pledged as security for its existing estimated indebtedness of $200,606.84, as well as all other future liabilities of the contractor under both contracts. Some of these security agreements were duly recorded with the county courts in Macon and Brunswick, Georgia. The contractor was also required to assign to plaintiff the right to all future earnings emanating from the Maeon and Brunswick contracts as well as all. future earnings which the contractor might receive from other sources. Trust accounts were established for the Macon contract and the Brunswick contract in order to provide control over the receipt and disbursement of funds applicable to each contract. The contractor’s prior account in a Brunswick bank was closed. A dual signature checking account was established in connection with utilization of the trust accounts with Mr. Norman R. Gunn, Jr., plaintiff’s Claims Manager in the Macon branch office, or his secretary Mrs. Jo Anne Glover (nee Flynt) authorized to sign for plaintiff and Mr. David G. Stradtman authorized to sign for the contractor. Two signatures were necessary to validate any check drawn on the trust accounts. From January 1965, and thereafter, all contract payments from the cities of Macon and Brunswick were sent directly to, or turned over to, plaintiff. The checks were generally payable jointly to plaintiff and the contractor. The totality of the security agreements, assignments, trust accounts, dual checking accounts and bill paying procedures established by plaintiff gave it effective control over the contractor’s financial situation. The contractor was unable to pay any bill or obligation without plaintiff’s approval since it had no independent funds of its own.

Thereafter, plaintiff paid obligations of the contractor, which it considered covered by its bonds, as well as obligations which it did not consider covered by its bonds. It also refused to pay other obligations although requested by the contractor to do so. In summary, plaintiff paid those obligations which would ensure that contract performance would continue toward completion. Obligations which did not fall into this category were generally not paid.

In March 1965, IRS advised plaintiff that the contractor owed some $9,404.90, representing federal withholding and F.I.C.A. taxes for the Fourth Quarter of 1964. A Notice of Tax Lien and a Notice of Levy had been filed in the county courts of Macon and Brunswick, Georgia. IRS agents visited Mr. Gunn in his Macon office and advised, in essence, that unless the taxes were paid the contractor would be shut down. They further advised Mr. Gunn that one who had authority to pay such taxes and refused to do so could be personally liable for the taxes and could go to jail. Presumably the agents believed Mr. Gunn had authority to pay the taxes but Mr. Gunn advised the agents he had no such authority. Both the cities of Macon and Brunswick advised plaintiff that no further payments would be made under the contracts until the government’s tax lien was satisfied. Both cities requested plaintiff to satisfy the tax indebtedness of the contractor. The contractor had no funds with which to make payment on its tax indebtedness but would have made said payments if it were financially able to do so. The contractor also requested plaintiff to pay the tax indebtedness on its behalf with the full understanding that the contractor would reimburse plaintiff for said payments. In view of these circumstances and to prevent the contractor from being shut down, Mr. Gunn obtained authority from the plaintiff’s Atlanta office to pay the tax indebtedness of the contractor.

In making payment 'to IRS, plaintiff advised it was doing so as an expedient, and expressly denied any legal responsibility on its part to the government for payment of such taxes. Plaintiff was of the view that its bonds did' not cover the taxes owed by the contractor and that it was not an employer with responsibility to collect and turn over to IRS federal withholding and F.I.C.A. taxes incurred by the contractor although these views were not articulated in the letter it sent IRS transmitting the tax payment.

The situation with respect to the contractor’s tax indebtedness for the Fourth Quarter of 1964 set out above was repeated with respect to the contractor’s tax indebtedness for the First Quarter ($7,108.43) and the Second Quarter ($7,-774.24) of 1965. Plaintiff paid the contractor’s tax indebtedness for these Quarters upon being advised by IRS agents that failure to pay the taxes would result in the contractor being shut down. IRS agents again advised plaintiff’s personnel — Mr. Gunn relative to the First Quarter assessment and Mr. Anderson, a subordinate of Mr. Gunn, relative to the Second Quarter assessment — that they, as individuals authorized to pay the taxes, could be subjected to personal liability and perhaps jail if the taxes were not paid. Neither of these individuals had authority to pay the taxes, and, as was the case previously, authority to pay the taxes was obtained from plaintiff’s Atlanta office. The contractor in both instances requested that said tax payments be made by plaintiff on its behalf with the full understanding that it would reimburse plaintiff for said payments. In transmitting the payments to IRS, plaintiff again expressly denied any legal responsibility for the contractor’s tax indebtedness and further advised that no such legal liability on its part should be assumed merely because it was advancing sums to the contractor.

In September 1965, plaintiff was again requested to pay additional taxes owed by the contractor, representing federal withholding and F.I.C.A. taxes ($5,183.-20) for the Third Quarter of 1965 and F.U.C.I. (Federal Unemployment Contribution Act) taxes ($9,733.55) for the tax period ending December 31, 1964. IRS agents visited Mr. Gunn and again advised that the contractor would be shut down if the taxes were not paid. They also advised, as they had done previously, that Mr. Gunn could be personally liable for the taxes and could go to jail if the taxes were not paid. At this stage of contract performance (the Brunswick contract was completed and the Macon contract was close to being completed) plaintiff determined it had gone as far as it could go with the contractor and refused to pay the taxes. However, the contractor wanted plaintiff to pay these taxes.

Upon being advised by plaintiff that it would not pay the contractor’s existing tax indebtedness, IRS took steps to implement its levy on the contractor’s equipment and as a result the contractor was forced to terminate its Macon contract operations. Plaintiff thereafter obtained a replacement contractor to complete the work.

Plaintiff subsequently filed claims for refund of the taxes it paid on behalf of the contractor with the District Director, Southeast Region, IRS, contending said payments were made under duress. The claims were denied on the ground plaintiff was not the taxpayer. Plaintiff thereafter filed suit in this court.

At the outset, defendant raises the question of jurisdiction. Defendant suggests that since plaintiff paid the taxes in issue on behalf of the contractor, which payments were credited by IRS against the contractor’s tax indebtedness, it, as a nontaxpayer, has no claim which it can assert in this court. The fact that plaintiff is a nontaxpayer does not, without more, serve to delimit the court’s jurisdiction. Defendant recognizes this fact and also acknowledges, with a lack of enthusiasm, that the case of Kirken-dall v. United States, 31 F.Supp. 766, 90 Ct.Cl. 606 (1940) supports jurisdiction here on the basis of a contract implied in fact, i. e., defendant has received and still possesses, money which came from plaintiff under circumstances which may create a contract implied in fact. Accordingly, the court, in these situations, will assume jurisdiction, under 28 U.S.C. § 1491, and decide the case on the merits even though defendant may ultimately prevail. Ralston Steel Corp. v. United States, 340 F.2d 663, 668-669, 169 Ct.Cl. 119, 126-127, cert, denied 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723 (1965).

The parties are in agreement that plaintiff would not have been legally liable for payment of the contractor’s tax indebtedness as an “employer” under pertinent provisions of the Internal Revenue Code of 1954 during the period in question. See Arthur Venneri Co. v. United States, 340 F.2d 337, 169 Ct.Cl. 74 (1965). The parties disagree on whether plaintiff would have been liable for payment of the contractor’s tax indebtedness under Section 6672 of the Internal Revenue Code of 1954. Under Section 6672, a surety may be held liable for the tax indebtedness of a contractor if it exercises control over the funds of the contractor with which the contractor could have paid the withholding taxes. See Pacific Nat’I. Ins. Co. v. United States, 422 F.2d 26 (C.A. 9th Cir., 1970) cert, denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970). Defendant, however, raises Section 6672 as an alternative set off defense to be considered only if it is concluded that plaintiff’s payment of the contractor’s tax indebtedness was the result of duress. In view of the conclusion reached hereinafter that duress was not present when plaintiff paid the taxes in question, it is unnecessary to come to grips with this troublesome question.

Plaintiff claims it paid the taxes on behalf of the contractor under duress. Its claim centers on conversations between IRS agents and personnel of plaintiff wherein the agents advised that (1) the contractor’s operations would be shut down if the then due and owing taxes were not paid; and (2) personal civil and criminal liability was possible if authorized personnel of plaintiff refused to pay these taxes. The facts in the ease will not support a finding of duress.

Plaintiff undertook to provide financial assistance to the contractor in late December 1964, in order to keep the contractor on both jobs and thus comply with its bond obligations to the cities of Macon and Brunswick to see to it that both contracts were fully performed. In keeping the contractor on both jobs, plaintiff paid various obligations of the contractor, some it considered covered by its bonds and others it considered not covered by its bonds. In making payments on the contractor’s obligations, plaintiff made a determination that such payments were a means of achieving a desired result, i. e., completion of the contracts covered by its bonds.

When plaintiff began to supply financial assistance to the contractor, creditors, suppliers and materialmen began looking to the plaintiff for assurance and/or payment relative to supplies to be furnished and/or furnished. The government, no more than the suppliers and materialmen, was also a legitimate creditor of the contractor. It was reasonable to expect that IRS would also look to plaintiff as a possible source for payment of the contractor’s tax indebtedness generated by the contracts, especially since all proceeds from both contracts were being transmitted directly to plaintiff and the contractor was left without funds with which to discharge its tax indebtedness.

It is in this setting that IRS agents approached plaintiff in March, June and August 1965, in an effort to obtain from plaintiff payment of the contractor’s tax indebtedness for the Fourth Quarter of 1964 and the First and Second Quarters of 1965. It is recognized that the government, in pursuit of unpaid taxes, has always been a diligent and formidable competitor for any property that might belong to the taxpayer. Under the circumstances, it was not unreasonable for IRS agents to approach plaintiff about discharging the contractor’s tax indebtedness.

In discussions with plaintiff’s personnel, IRS agents made it clear that if the contractor’s taxes were not paid, implementation of the Notices of Lien and Levy which had been filed in the appropriate county courts of Georgia would terminate contract performance. The agents also advised plaintiff’s personnel (Mr. Gunn and Mr. Anderson) that individuals who had authority to pay taxes could be held personally liable or could go to jail if said taxes were not paid. Neither of the individuals who conferred with the agents had authority to pay the taxes in question and there is no credible evidence in the record that the individual who had the authority to make such payments was apprised of these conversations or threatened in any way with civil or criminal liability. The findings disclose quite clearly that plaintiff paid the taxes on behalf of the contractor in order to prevent the jobs from being shut down.

It is obvious that IRS had a right to take appropriate steps to effect payment of overdue taxes. The filing of the Notices of Lien and Levy were proper in this case. The statement of the agents that if the taxes of the contractor were not paid, the contractor would be shut down, was a frank statement of the inevitable consequence which would occur; a statement of an intention to seek a remedy which the law gave to the government in its effort to collect overdue taxes from a delinquent taxpayer. It is never' duress to threaten to do what one has a legal right to do. Beatty v. United States, supra, 168 F. Supp. at 206, 144 Ct.Cl. at 207.

Plaintiff made a reasoned judgment initially to provide the contractor with financial assistance in the expectation that with such assistance the contractor would be able to complete the contracts. When it paid the tax obligations of the contractor it again made a reasoned judgment that such payments were required to keep the contractor on the job, and that it was in plaintiff’s best interest to keep him on the job on those occasions. When plaintiff felt it was no longer in its best interest to keep the contractor on the job, it declined to pay the contractor’s tax indebtedness covering the Third Quarter of 1965 as well as F.U.C.A. taxes covering the period ending December 31, 1964, and the inevitable consequence occurred — contract performance was terminated. The point is plaintiff was completely free to pay the taxes or not; it has no valid right now to complain of the choice it made to pay the taxes for the Fourth Quarter of 1964 and the First and Second Quarters of 1965. Beatty v. United States, supra, 168 F.Supp. at 207, 144 Ct.Cl. at 207.

Even viewed in a light most favorable to plaintiff, the actions of IRS in the circumstances surrounding payment of the taxes by plaintiff cannot be considered so overpowering as to have inhibited plaintiff from the unfettered exercise of its reasoned judgment. Plaintiff was an experienced surety company with competent legal advice readily available. When it paid the taxes on behalf of the contractor it did so in the belief it was acting in its best interest. The money that IRS took was voluntarily proffered by plaintiff in satisfaction of tax liabilities of the contractor admittedly owing to the United States. In making said payments plaintiff gained the advantage of keeping the contractor on the job. It was plaintiff’s business judgment that the contractor should remain on the job, in furtherance of plaintiff’s own interest under its bonds. Payment of the contractor’s tax obligations was necessary to keep it on the job. The mere stress of business conditions will not support duress contentions where the government is not responsible for the underlying circumstances. Commonwealth Engineering Co. v. United States, 180 F.Supp. 396, 398, 148 Ct.Cl. 330, 334 (1960), cert, denied, 364 U.S. 820, 81 S.Ct. 55, 5 L.Ed. 2d 50 (1960).

It is also noted that plaintiff paid the taxes on behalf of the contractor at the specific request of the contractor with the full understanding that the contractor would reimburse plaintiff. Under these circumstances it is not unreasonable to view the tax payments by plaintiff as advances. Indeed, plaintiff in its June 3, 1965, and August 6, 1965, letters to IRS transmitting the tax payment due for the First and Second Quarters of 1965 advised that by virtue of its advancing sums to the contractor it was not admitting that it was legally liable for payment of such taxes. Plaintiff may have a cause of action against the contractor on whose behalf it paid the taxes, but it has no valid claim against defendant. Ralston Steel Corp. v. United States, supra, 340 F.2d at 672, 169 Ct.Cl. at 133.

As the court noted in J. C. Pitman & Sons v. United States, 317 F.2d 366, 369, 161 Ct.Cl. 701, 707 (1963), it had “the impression that the payment of one’s taxes by another is not an unusual occurrence.” It would seem that, when a surety makes tax payments on behalf of a contractor to whom it has furnished bonds it is even less unusual, especially when it publicly undertakes to provide financial assistance to the contractor.

There are no circumstances in this case whereby a contract implied in fact can be established based on the dealings between IRS and the plaintiff. Plaintiff has failed to carry its burden in this regard, and it must be placed in the fatal category of a volunteer. J. C. Pitman & Sons v. United States, supra, 317 F.2d at 369-370, 161 Ct.Cl. at 706-707.

Plaintiff’s petition should be dismissed.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing' opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is dismissed.

       Whereas the court adopts the trial judge’s separate findings of fact, which are set forth in his report of February 22, 1973, they are not printed herein since such facts as are necessary to the decision are contained in his opinion.

      . The Second Quarter assessment included the sum of $2,038.12 which was the responsibility of another surety, New Amsterdam Casualty Co. This surety company reimbursed plaintiff the sum of $2,038.12. However, plaintiff still seeks to recover here the full amount of its payment to IRS. There is no basis on this record, and no case law has been cited, which would justify recovery by plaintiff in this regard. To the extent that New Amsterdam is indebted to plaintiff on other matters, plaintiff must proceed against New Amsterdam and not defendant.

      . Plaintiff’s jurisdictional statement refers to 28 U.S.C. § 1346(a) (1) and 28 U.S.C. § 1491.

      . The filing of a claim for refund does not convert a nontaxpayer into a taxpayer. Economy Plumbing & Heating Co. v. United States, 470 F.2d 585, 589, 200 Ct.Cl. 31, 37 (1972).

      . Plaintiff concedes that under the Federal Tax Lien Act of 1966, 80 Stat. 1138, 1139, 26 U.S.C. § 3505 (1966), which took effect January 1, 1967, it would be legally liable for payment of the taxes here in issue. However, it argues that passage of the Act clearly demonstrates that it was not legally liable for the contractor’s tax indebtedness during the period in question. While plaintiff does not articulate the contention in its briefs, it seems to imply that since it paid the taxes of the contractor when it was not legally obligated to do so, it must have done so under duress. However, this approach fails to consider plaintiff’s self interest as a surety and the various ramifications of the bonds it furnished the contractor.

      . The court in Pacific Nat’I. Ins. Co., supra, admitted that its interpretation of Section 6672 as encompassing a surety was disputable, but pointed out that the result it reached was one now explicitly required by the Tax Lien Act of 1966 (422 F.2d at 27-28). Moreover, different courts have taken different views of liability under Section 6672. See Lindeman, Confusion over scope of 100% penalty makes it a most “settleable” issue, 38 The Journal of Taxation 50 (Jan. 1973). See also McCarty v. United States, 437 F.2d 961, 967, 194 Ct.Cl. 42, 54 (1971).

      . This fact weakens the force of plaintiff’s reliance on the assertion it made to IRS agents that taxes were not covered by its bonds. Plaintiff was motivated to pay the contractor’s obligations, whether covered by its bonds or not, in order to avoid a work shut down and to further contract completion. For example, it paid off a chattel mortgage on some of the contractor’s equipment even though it was not required to do so under its bonds because the contractor needed the equipment to perform the contracts. Under these circumstances, that plaintiff viewed its bonds as not covering taxes is of little moment. Moreover, one surety commentator has pointed out that even before the passage of the Tax Lien Act of 1966, supra, most sureties, when financing a faltering contractor saw to it that payroll taxes were paid. Brady, Bonds on Federal Government Construction Contracts: The Surety’s View, 46 N.Y.U.L.Rev. 262, 267, n. 28 (1971).

      . Plaintiff was well aware, as early as late January 1965, that the contractor was not paying the taxes in question. Accordingly, the visits from IRS were not a complete surprise to plaintiff.

      . Plaintiff contends that these personal threats influenced it to pay the taxes in question. However, the facts show that neither Mr. Gunn, nor Mr. Anderson, were intimidated by the threats. Indeed, Mr. Anderson had been prepared for the IRS visit by Mr. Gunn and told to contact plaintiff’s attorney. In the last analysis, if either Mr. Gunn or Mr. Anderson were inclined to feel threatened by the remarks of the IRS agents, it was only necessary for them to contact plaintiff’s attorney, who was readily available, to learn that since they had no authority to make tax payments, they could not be personally liable. These circumstances will not support duress. Beatty v. United States, 168 F.Supp. 204-205, 144 Ct.Cl. 203, 206-207 (1958). Moreover, in the absence of unusual circumstances, representations as to questions of law generally will not form a basis for setting aside completed transactions. Mills v. United States, 410 F.2d 1255, 1257, 187 Ct.Cl. 696, 700 (1969).

      . It is not clear from the record whether any of the progress payments earned by the contractor were utilized and/or available for payment of the taxes. The Macon Trust Account indicates that from February 3, 1965, to April 27, 1965, progress payments of some $112,303.46 were deposited therein. An additional progress payment of $16,274.08 was deposited in the trust account in July 1965. However, since there is no record of disbursements from either of the trust accounts, one cannot say whether in March or June or August 1965 there were sufficient progress payment funds available to cover the taxes then paid.

      . See Brady, supra, note 6, at 267, n. 28.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    E. DILLINGHAM, INC., Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 5538.
    United States Court of Customs and Patent Appeals.
    Feb. 7, 1974.

      Eugene F. Blauvelt, New York City (Sharretts, Paley,' Carter & Blauvelt, New York City), attorneys of record, for appellant. Gail T. Cumins, New York City, of counsel.
    Irving Jaffe, Acting Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, New York City, David A. Ast, Staten Island, N. Y., for the United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This appeal is from the judgment of the United States Customs Court, 70 Cust.Ct. 141, C.D. 4420, 358 F.Supp. 1295 (1973), dismissing appellant’s claim for refund of duty and affirming the classification by the Customs Service under item 100.53 TSUS of nine imported female Holstein-Friesian bovines, each weighing 700 pounds or more and pregnant for the first time. We affirm.

The pertinent statutory provisions are as follows:

Tariff Schedules of the United States

Schedule 1.

Part 1. — Live Animals

Part 1 headnotes:

2. Unless the context requires otherwise, each provision for named or described animals applies to such animals regardless of their size or age, e. g., “sheep” includes lambs.

* * ' * * * * * *

Live animals other than birds:

* * ******

Cattle:

********

Weighing 700 pounds or moré each:

100.50 Cows imported specially for dairy purposes...... 1$ per lb. Other:

100.53 For not over 400,000 head entered in the 12-month period beginning April 1 in any year, of which not over 120,000 shall be entered in any quarter beginning April 1, July 1, October 1, or January 1 ................................ 1.5$ per lb.

Appellant argues that each of the animals in question was a “young cow” imported • specially for dairy purposes; that a young cow carrying a calf is j.ust as “suitable” for dairy purposes as one which .has just given birth to a calf; and that paragraph 2 of the headnotes makes clear the Congressional intent that any cow, imported specially for dairy purposes, is to be classified under item 100.50 if it weighs 700 pounds or more regardless of its age or size.

Appellee agrees with the opinion of the trial court that a heifer does not attain the status of a “cow” until parturition takes place for the first time. It contends that the trial court properly-found that appellant’s animals were not “cows”; also that, even if they should be determined to be “cows,” they were incapable of being milked for commercial purposes at the time of importation and could not be classified as “cows imported specially for dairy purposes” under item 100.50 TSUS.

The basic issue is whether appellant has sustained its burden of proving that the animals in question were “Cows imported specially for dairy purposes” within the meaning of item 100.50. As the trial court correctly observed, the language involved in the TSUS appears for the first time in any tariff act of the United States. No definition is provided for “Cows imported specially for dairy purposes”, so the trial court determined the common meaning of “cow.” While we do not disagree with such determination, we believe the qualifying language “imported specially for dairy purposes” requires a determination of the meaning of “cow” in the dairying trade.

Both parties have cited various dictionary and lexicographic definitions, which support appellant’s contention that a heifer is a young cow and appel-lee’s contention that a cow is a female bovine which has produced a calf. However, since we are seeking the meaning of “cow” in the dairying trade for purposes of the tariff schedules, we do not regard these sources as particularly helpful — with the exception of the cited Dictionary of Agriculture and Allied Terminology, which contains this definition: “Cow — a market term for designating a female bovine which has produced a calf.” (Emphasis supplied.) See United States v. The Spiegel Bros. Corp., 51 CCPA 69, C.A.D. 839 (1964).

Appellee points out that Corpus Juris Secundum, Black’s Law Dictionary, and Words and Phrases which appellant cites derive their definitions from cases concerned with state laws relating to theft or exemption from levy which are not, in the absence of evidence to the contrary, relevant to the purposes of the TSUS.

Appellant cites the First Reciprocal Trade Agreement with Canada (T.D. 48033), which became effective January 1, 1936, and the Digest of Trade Data published by the U. S. Tariff Commission in 1936 as the source of the provision for “Cows imported specially for dairy purposes”, and contends that “cow” was used in lieu of, and in the same sense as, female cattle. This contention is based on a Customs Regulation (T.D. 48057), issued by the Secretary of the Treasury following the Canadian Trade Agreement, which directs that the Customs officer “shall satisfy himself that the animal is suitable for dairy purposes.” Appellant further claims that “A young cow, heifer, which is carrying a calf, is clearly just as suitable for dairy purposes as a young cow, first-calf heifer, which has just given birth to a calf, and is beginning- her first lactation.”

We have concluded that these arguments must fail. The direction to the Customs officer in the quoted portion of the Customs Regulation, could as well have been intended to prevent a reduction in duty from being applied to cows of a breed suitable for beef cattle production as to permit such reduction to be applied to all females of a dairy breed. Moreover, appellee has called attention to tables published by the Tariff Commission which appear in the above-referred to Digest of Trade Data. These tables list “Cows and heifers 2 years old and over,” showing recognition of a distinction between “cows” and “heifers.” Appellant has not shown that the Digest of Trade Data was considered by the Congress. Assuming that it was, there is nothing in the legislative history of the TSUS to indicate other than tacit acceptance of this distinction. Finally, appellant appears to equate the phrase “suitable for dairy purposes” in the referenced Customs Regulation with “specially for dairy purposes” in the statute with which we are here concerned. The latter phrase denotes an exclusivity of purpose, which the animals in question did not possess because, at the time of importation, each had to first produce a calf before becoming marketable for dairy purposes. This is substantiated by the testimony of appellant’s witness, Philip R. Goldberg, who stated that “ninety-nine per cent” — “a good many each day” — of the heifers imported by the partnership calved while in possession of the partnership after importation and prior to sale; that “most of the people that we sell cattle to in Connecticut are primarily in the business of producing milk. . . . they are interested in buying an animal that is ready to produce milk today.” He also testified that pregnant heifers are valued the same as a cow in preparing financial statements for the partnership for commercial bank loan purposes. While no evidence was submitted that the lending agencies regarded such heifers as “cows,” the testimony serves to show that the impending calf crop from such animals was a commercial consideration for such valuation purposes.

Six witnesses were presented by appellant: Robert Perry, a drover who bought bred heifers from Canadian dairy farmers for the importing firm; Norman and Philip Goldberg, members of the importing firm; Richard Lewis, Robert Thompson, and Irwin McQuer— all long-time dairy farmers. Perry testified that he regarded a heifer as a young cow and defined a cow as “an animal that produces a calf.” Norman Goldberg testified that to him the word “cow” as applied to dairy cattle meant “an animal that is matured, five years of age, full mouth [eight teeth]”; that an animal three or four months prior to giving birth to her first calf is “a young cow.” Philip Goldberg, in addition to the testimony earlier ref erred, to, testified that the animals in question were sold to two operators of dairy farms in Connecticut; that a heifer is the same as a young cow; that a mature cow has a “full mouth” — -“eight teeth.”

Witness Lewis testified that to him the term “heifer” meant “a young eqw”; that, in his opinion, a cow “is a female bovine as the other people [appellant’s previous witnesses] have said.” Witness McQuer testified that his understanding of the word “cow” was “a female with a full mouth”; that a heifer is a “young cow.” In answer to a question on cross-examination whether he would accept delivery of an open (unbred) heifer when he had ordered a cow, he responded: “Not if I wanted an animal for milk.” Witness Thompson, on direct examination, testified that he grew up on a dairy farm, had operated his own dairy farm since 1944, was chairman of the board of the Eastern Artificial Insemination Cooperative, and traveled widely in the United States in that official capacity; that, in his understanding of a dairy cow, “We never refer to an animal as a cow until after she has had a calf.” (Emphasis supplied.) He stated that “a senior yearling heifer is a heifer between the ages of 18 and 24 months” and that such an animal “could still be a cow if she has produced a calf and she could produce a calf as a senior yearling, but not ordinarily.” On cross-examination, he further testified that he belonged to the New York Holstein Association and paid dues on the basis of a flat fee plus an additional amount for each milking cow in the herd or each cow which has milked; that bred heifers in their last month of pregnancy would not be counted for dues purposes.

Three witnesses were presented by ap-pellee. The first was Dr. Edwin Smith, a practicing veterinarian since 1943 with degrees from New York State Agricultural College at Cornell University, and currently a professor of Animal Science at Canton (New York) Agriculture & Technical College. He testified that he was born and raised on a farm and had owned his own dairy farm; that a cow by definition is “an animal that has those anatomical and physiological changes brought about by having a calf”; that a heifer is “a female bovine animal that has not had a calf”; that he would not consider bred heifers to be cows because “they have not had their first calf and do not have the anatomical and physiological changes that come about by having that calf,” and that he had attended five auctions a year during his years as a veterinarian where there were separate categories for “bred heifers” and “cows.” He also stated that the factor of teeth is not determining between heifer and cow, although it is a factor in age.

Appellee’s next witness was Dr. Frank Bancroft, also a Cornell University graduate, a veterinarian with the U. S. Department of Agriculture for over four years and previously in private practice for thirty-three years, born and raised in a dairy community. He testified that he believed a cow to be “A bovine animal that has had a calf and lactated” and that he would not consider a bred heifer to be a cow.

Appellee’s third witness was James Repard, Executive Secretary of the New York State Holstein Association, which is a 4,600 member voluntary organization for the promotion and merchandising of Holstein cattle in the State of New York. He was born and raised on a dairy farm in the State of New York and, prior to becoming Executive Secretary, had owned and operated a dairy farm since 1938. He testified that he kept up with changes in the dairy industry by attending sales, meetings, and conventions and talking with farmers throughout the state. It was his statement that “A cow is a bovine female that has had her first calf,” and that “A heifer is a heifer until she has her first calf and then becomes a cow.” Based on his experience as a dairy farmer and his position in the Holstein Association, he stated that it is normal among farmers to distinguish between cow and heifer, and that “No, no way” is a bred heifer known as a cow in the farming industry. He said “Definitely not” in response to a question of whether he would accept a bred heifer as delivery for a cow, and “No” to whether he would accept a cow when he had ordered a heifer. He pointed out that there are heifer classes in a show, followed by the cow classes. With respect to association dues, he testified that there is a $10 minimum fee plus 25$ for every cow in the herd, not counting heifers even if bred. He described the classification program for members of the association under which a herd is enrolled, with each cow that has had a calf being listed and no animal being classified that has not calved. He identified appellee’s Exhibit B, a catalog of a sale on May 6, 1972, as “very typical of the catalogues that we have at cattle sales,” and interpreted the descriptions of various lots, thus: cow (“She has had at least one calf.”); H. C. (“Heifer calf.”); 1st (“She is milking with the first calf. She is a cow.”); and B. H. (“Bred heifer.”)

Appellant argues that the trial court applied a “narrow scientific meaning” of the word “cow” and that “The government witnesses, being men of science, interpreted the term ‘cow’ in the strict technical sense”; whereas “Appellant’s witnesses, being men of the earth, defined cow in the language of everyday parlance.” It is true that two of appellee’s witnesses were veterinarians, but one had long been a dairy farmer and both practiced in dairy communities. Appellee’s third witness could hardly be described as a “man of science”; not only had he been a long-time dairy farmer, but he also was an officer of wide experience in the New York Holstein Association which was concerned with the promotion and merchandising of animals of the same breed as the animals here in question. We also note that Robert Thompson, one of appellant’s “men of the earth” witnesses, testified on direct examination that “We never refer to an animal as a cow until after she has had a calf”; that another of such witnesses, Irwin McQuer, stated that he would not accept delivery of a heifer when he had ordered a cow “if I wanted an animal for milk.” Such testimony supports appellee’s response that its witnesses were not testifying solely from a scientific and technical frame of reference, but “in the language of commerce of those intimately familiar with bovine, dairy farmers, and all phases of dairy farming.” We conclude that the meaning of “cow” in the dairying trade is a female bovine of a breed suitable for dairy purposes which has produced a calf.

With respect to the applicability of paragraph 2 of the headnotes to item 100.50, we observe that “the context requires otherwise” only with respect to size of the cows being imported, because item 100.50 specifically requires that they weigh “700 pounds or more each.” The context is silent on age, and from this appellant postulates that bred heifers as “young cows” would qualify. However, in view of our above conclusion on the meaning of “cow” and in further view of what we have said regarding the significance of the qualifying language “imported specially for dairy purposes” with reference to bred heifers, we conclude that paragraph 2 of the headnotes is of no avail to appellant.

In view of the foregoing, and having fully considered the evidence of record and the briefs of both parties, we hold that the animals in question were not “Cows imported specially for dairy purposes” for purposes of the TSUS.

The judgment of the Customs Court is affirmed.

Affirmed.

      . John N. Winburne, Michigan State University Press, East Lansing, Michigan (1962).

      . We observe a similar posture in the trial judge’s reminiscence of having been accorded, as a young lad, the “dubious honor” of milking the family cows on a farm “in the beautiful and fertile Red River Valley of North Dakota.”


author: RICH, Judge. MILLER, Judge

text:
    Application of Robert F. CONLEY et al.
    Patent Appeal No. 9101.
    United States Court of Customs and Patent Appeals.
    Jan. 24, 1974.

      Eugene F. Buell, Pittsburgh, Pa. (Buell, Blenko & Ziesenheim), Pittsburgh, Pa. attorney of record, for appellants.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Robert D. Edmonds, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection of claims 1-9 of application serial No. 721,955, filed April 17, 1968, entitled “Satin White-Clay Compositions and Methods of Manufacture,” for “indefiniteness” under 35 U.S.C. § 112, second paragraph. We reverse.

The Invention

The invention relates to paper coatings and results from the discovery by appellants of a seemingly simple solution to a well-known problem in the art of paper coatings. As appellants explain the prior art, it has long been known to provide paper coating compositions made up of dispersions of kaolinite, adhesives, and other mineral materials such as satin white. Satin white is a calcium sul-fo-aluminate (clay) of somewhat indefinite composition manufactured from Ca(OH)2 and A12(S04)3. As appellants’ specification explains:

The chief problem in the manufacture of satin white is stability — it must be kept in water suspension, usually at about 20-25% solids. It is well recognized that drying satin white destroys it together with the useful optical properties it imparts. It is observed that the suspension is even degraded at temperatures above 75° C. While 75-80% water may be higher than necessary for its stability, the extremely thixotropic viscosity of satin white in water makes it completely impractical to handle at solids higher than 25%. The high water content introduces several commercial problems. Shipping costs are exorbitant and shipping is prohibited where exposure to cold weather results. The latter problem arises because freezing of the water in satin white also destroys the pigmentary characteristics. The “extra” water in satin white may dilute the coating composition and require additional drying time and costs for its removal.

In the prior art, the aqueous solution of satin white is mixed at the site of paper coating with kaolinite and adhesives, such as starch, and roll or blade coated onto a moving paper sheet and dried thereon to provide coated paper. Appellants have discovered, however, that the stability problem of the satin white suspension can be avoided by premixing the satin white and kaolinite and drying the mixture to provide a handleable, powdery material whose properties when reconstituted at the site of paper coating, according to their application, are, unlike satin white alone, “not only not degenerated, but actually improved over the freshly formulated components.”

The claimed invention is a dry particulate coating pigment composition of kaolinite and satin white which may subsequently be made up into aqueous coating compositions and which comprises a co-dried mixture of an effective amount each of satin white and kaolinite and a method of making such a mixture. The method consists of forming a satin white composition in aqueous suspension, adding kaolinite in sufficient amount to retain the effectiveness of satin white as a paper coating pigment on rewetting after drying, and removing the water therefrom to form a free-flowing powder.

Representative claims, with the portions alleged to be indefinite emphasized, are:

1. The method of producing an improved dry particulate coating pigment containing satin white and kaolin which after drying may subsequently be made up into aqueous coating compositions comprising the steps of:
(a) forming a satin white composition in aqueous suspension;
(b) adding a kaolinite to said aqueous suspension of satin white in sufficient amount to retain the effectiveness of satin white as a paper coating pigment on rewetting after drying; and
(c) removing water from the aqueous suspension to form a free flowing powder.
3. The method as claimed in claim 1 wherein a paper coating adhesive starch is added to said admixture prior to drying.
8. A dry particulate composition suitable for subsequent formulation in paper coating colors comprising a co-dried mixture of satin white and ka-olinite of about 5% moisture content.

Claims 2-7 are all dependent from claim 1 and claim 9 is dependent from claim 8.

The Rejection

As stated in the Examiner’s Answer, the claims were rejected under 35 U.S.C. § 112, second paragraph, for the reasons that:

A. Claims 1-10 are indefinite since operative proportions of (1) satin white in the aqueous suspension (Claims 1-7) and (2) satin white and kaolinite in the “compositions” (claims 8-10) are not recited.
B. Claim 3 is indefinite since operative proportions of starch in the “admixture” is [sic] not recited. Sustaining rejection (A), the board

stated only the following reasons, which appear to be directed to the language of claims 8 and 9:

It is evident that the amount of ka-olinite is of some importance or criti-cality in the formation of the desired satin white compositions because as Example III shows, appellants’ objective is not attained with either a satin white or kaolinite clay used separately. With respect to even the 30% satin white compositions no improvement in the effectiveness of the satin white as a paper coating pigment on rewet-ting after drying is achieved when the composition is oven dried. The specification does not describe, indeed, the relative amount of kaolinite that is required to produce the desired and indicated effectiveness when the product is oven dried. The proportions specified as a sufficient amount are uncertain, as the examiner states, because the “effectiveness” as a paper coating pigment is a variable consideration depending on the particular aspect of paper coating properties that may'be emphasized. The uncertainty of the expression used is not made less by the fact that it is possible to obtain an improvement in some paper coating characteristics while at the same time obtaining less desirable results in others — even in the coating characteristics listed in the specification.

As to rejection (B), the board stated that “With respect to claim 3 the proportion of starch is unspecified although it is evident that this proportion may grossly influence the characteristics of the resulting coating composition in itself. In proper proportion it may, of course, act as a binder as disclosed and improve the rheology.” (Rheology refers to the flow characteristics of the composition.)

Appellants’ Arguments

Appellants answer the assertion that the language of claim 1, and of the claims dependent therefrom, is indefinite for failure to recite the operative proportions of satin white in the aqueous suspension with the statement that “there are no critical proportions of satin white in aqueous suspension.” As appellants see it, “The only considerations so far as proportions are concerned are first to have enough water to create a suspension and second not to have so much water as to make it economically unfeasible to remove the water in the final drying step.” Appellants further maintain that their “specification provides numerous examples of satisfactory practices and one skilled in the art would immediately recognize these reasonable limits.”

As to the alleged indefiniteness of composition claims 8 and 9, appellants make a similar argument, noting that their specification gives many examples of the proper proportions of satin white and kaolinite and one skilled in the art would know what proportions to use. They emphasize that the invention lies in the discovery that one can add kaolin-ite to wet satin white and then dry the mixture and later reconstitute it to make a paper coating composition without losing the properties of the satin white. With respect to the board’s reference to an oven dried sample, which showed no improvement over satin white as a paper coating material, appellants state that their purpose was not to show an improvement over satin white as a paper coating pigment, but only “to provide a means for modifying satin white so that it can be successfully dried and shipped and be at least equal to satin white as a coating pigment,” not necessarily superior.

OPINION

Indefiniteness

We state at the outset exactly what is meant by the requirement of the first sentence of the second paragraph of § 112 which was the stated basis for the rejection, given the shorthand name “indefiniteness.” It is essentially a requirement for precision and definiteness of claim language. If the scope of subject matter embraced by a claim is clear, and if the applicant has not otherwise indicated that he intends the claim to be of a different scope, then the claim does particularly point out and distinctly claim the subject matter which the applicant regards as his invention. In re Borkowski, 422 F.2d 904, 909, 57 CCPA 946, 952 (1970). Stated another way, the “requirement is that the language of the claims must make it clear what subject matter they encompass”, In re Hammack, 427 F.2d 1378, 1382, 57 CCPA 1225, 1230 (1970), and thus make “clear the subject matter from which they would preclude others.” In re Ham-mack, supra, 427 F.2d at 1382, 57 CCPA at 1231.

Application of the requirement of the second paragraph of § 112, so interpreted, to the specific words of the claims which the examiner and the board have held to be indefinite shows immediately the impropriety of the label “indefinite,” in the sense of the requirement for precision and definiteness of claim language in order that one can determine whether or not he would infringe the claim. There is no question that if one forms “a satin white composition in aqueous suspension” he is within this language of claims 1-7. If “adhesive starch is added” to his admixture he infringes claim 3 to this extent, and if he has a “mixture of satin white and kaolinite” he is within this wording of claim 8. In this sense, therefore, there is nothing “indefinite” in the language used.

“Claiming the Subject Matter Which Applicant Regards as His Invention”

Occasionally the first sentence of the second paragraph of § 112 has been relied upon as a basis for rejection of a claim, not because of “indefiniteness” of the claim language but because the language used did not particularly point out and distinctly claim the subject matter which the applicant regards as his invention. This portion of the statutory language has been relied upon in cases where some material submitted by applicant, other than his specification, shows that a claim does not correspond in scope with what he regards as his invention. In re Prater, 415 F.2d 1393, 56 CCPA 1381 (1969); In re Cormany, 476 F.2d 998,-CCPA- (1973). There has been no reliance here on anything other than appellants’ specification to suggest this as a basis for the second paragraph rejection made.

It is not inappropriate to observe under this heading that the board’s reference to an “oven dried” product in the passage quoted above from its opinion is entirely beside the point. Appellants’ specification makes it very clear that oven drying was not satisfactory as a way of dehydrating the satin white-ka-olinite slurry. The only satisfactory method of dehydrating disclosed is spray drying. The disclosed samples that were oven dried were not formulated into paper coating compositions and are no part of appellants’ inventive contribution except in the sense of teaching the art how not to try to practice their invention — a useful kind of disclosure to make.

Accordingly there is no basis under the second paragraph of § 112 for the rejection made.

Summary

The rejections of claims 1-9 under 35 U.S.C. § 112 are reversed. The appeal as to claim 10 is dismissed.

Reversed.

MILLER, Judge

(concurring).

I concur with the decision that the rejection of the claims should be reversed, for the reasons stated under the heading entitled “Indefiniteness.” At the same time, I call attention to the majority’s statement: “Appellants’ specification makes it very clear that oven drying was not satisfactory as a way of dehydrating the satin white-kaolinite slurry.” To me, this implies that appellants are claiming more than they regard as their invention (some of the claims cover oven drying) and would indicate rejection under 35 U.S.C. § 112, second paragraph. Here the rejection being reversed was also under 35 U.S.C. § 112, second paragraph, but was premised on “indefiniteness.”

Also, it appears that the reasons set forth by the board to justify its affirmance of the examiner’s rejection are directed to 35 U.S.C. § 112, first paragraph. For example, the board states: “The specification does not describe, indeed, the relative amount of kaolinite that is required to produce the desired and indicated effectiveness when the product is oven dried.”

      . A somewhat similar rejection of at least some of the same claims for “indefiniteness” under the second paragraph of § 112 was withdrawn by the examiner in his Answer. The rationale for this rejection was that the claims were “indefinite since the expression ‘in sufficient amount to retain the effectiveness of white satin’ * * * [and other language in at least some of the claims] are functional and do not, themselves, set out operative proportions.”
      In their brief in this court appellants have withdrawn the appeal on claim 10.

      . This is not to say, however, that “indefiniteness” under the second paragraph of § 112 cannot be created or brought out by reference to the specification. As we said in In re Moore, 439 F.2d 1232, 1235, 58 CCPA 1042, 1047 (1971), the definiteness of claim language is not analyzed in a vacuum, “but always in light of the teachings of the prioi-art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill in the pertinent art.” There has been no such refence to the specification here.


author: RICH, Judge.

text:
    The UNITED STATES, Appellant, v. VOLKSWAGEN OF AMERICA, Appellee. VOLKSWAGEN OF AMERICA, Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal Nos. 5515, 5517.
    United States Court of Customs and Patent Appeals.
    Jan. 24, 1974.
    Joseph F. Donohue, Aloysius Stedina, Charles P. Deem, Donohue & Shaw, New York City, attorneys of record, for Volkswagen of America.
    Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Michael S. O’Rourke, New York City, for the U. S.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

These appeals are from the decision and judgment of the United States Customs Court, Third Division, in Volkswagen of America, Inc. v. United States, 68 Cust.Ct. 190, C.D. 4358, 343 F.Supp. 1394 (1972), which was a rehearing of Volkswagen of America, Inc. v. United States, 66 Cust.Ct. 85, C.D. 4172, 322 F. Supp. 1390 (1971). We reverse.

The merchandise, Volkswagen double-cab pickups, model 265, was classified under item 945.69 of the Tariff Schedules of the United States (TSUS) as “Automobile trucks valued at $1,000 or more (provided for in item 692.02)” with duty at 25% ad valorem. The first decision of the Customs Court, C.D. 4172, 322 F.Supp. 1390, involved a protest by the importer claiming classification as “Other” vehicles provided for in item 692.10, TSUS, under the same superior heading as automobile trucks, and dutiable at 5.5% ad valorem. The court held that the superior heading plainly contemplates “single purpose transport vehicles, i. e., motor vehicles which transport either persons or articles,” whereas the importations transport both. It therefore overruled the protest, without however, affirming the classification by the district director.

After judgment in C.D. 4172, 322 F. Supp. the Customs Court, on motion by Volkswagen, vacated the judgment and allowed amendment of the protest to add an alternate claim under item 692.16 as “Motor vehicles specially constructed and equipped to perform special services or functions,” “Other,” at 9% ad valo-rem. The court sustained the latter claim in C.D. 4358, 343 F.Supp. 1394.

Before us, in appeal No. 5515, the government appeals on the ground that the original classification under item 945.69 (692.02) was correct. In appeal No. 5517, Volkswagen, although it did not introduce additional evidence, seeks classification primarily under item 692.-10 and, alternatively, seeks to maintain the judgment below holding classification proper under item 692.16.

The statutes involved are:

Tariff Schedules of the United States, 19 U.S.C. § 1202:
Classification:
Appendix to the Tariff Schedules
Part 2. Temporary Modification Proclaimed Pursuant to Trade-Agreements Legislation
Subpart B. Temporary Modifications Pursuant to Section 252 of the Trade Expansion Act of 1962
Item
945.69 Automobile trucks valued at $1,000 or more (provided for in item 692.02).. 25% ad val.
Motor vehicles (except motorcycles) for the transport of persons or articles:
(692.02] Automobile trucks................. * * *
Claimed Classification:
Schedule 6, Part 6, Subpart B, TSUS:
* * * * * * * *
Motor vehicles (except motorcycles) for the transport of persons or articles:
692.02 Automobile trucks valued at $1,000 or more, and motor buses........... * * *
692.10 Other ............................ 5.5% ad val.
Claimed Classification on Rehearing Sustained by the Court:
Schedule 6, Part 6, Subpart B, TSUS:
******* *
Motor vehicles specially constructed and equipped to perform special services or functions, such as, but not limited to, fire engines, mobile cranes, wreckers, concrete mixers, and mobile clinics:
* * * Fire engines...................... * * *
692.16 Other............................ 9% ad val.

The imported double-eab pickups are illustrated in Volkswagen’s Exhibit 4, a pamphlet entitled “The Volkswagen family of trucks,” as follows:

Built on the same chassis as the Volkswagen standard pickup truck (with one bench seat enclosed in the cab), the model 265 has two bench seats in the enclosed cab to accommodate a driver and five passengers. Exhibit 4 contains the statement:

Take the back seat out and you can store 65 cubic feet of anything (cargo, equipment or whatever) you want to keep dry and protected.

According to a qualified witness for Volkswagen, the model 265 is designed to carry five passengers plus a driver with an overall carrying capacity of approximately 2200 pounds. With six persons in the vehicle, the capacity is about evenly divided — 1100 pounds for the driver and passengers and 1100 pounds for cargo. With only 3 persons, as could be carried in the front seat alone, the cargo capacity was said to be about 1578 pounds. The sides of the flat cargo space at the rear are hinged to swing downward to provide additional flat cargo carrying space.

In its opinion on rehearing, C.D. 4358, 343 F.Supp. 1395, the Customs Court quoted from its opinion in C.D. 4172, 322 F.Supp. 1390 as follows:

We find from the evidence presented in this record that the model 265 Volkswagen is specially suited to perform the limited role of conveying a small crew and its equipment to and from a particular place or job site, and is specially constructed and equipped to perform special services * * *

The court then commented that, on rehearing, Volkswagen’s counsel conceded that the imported vehicle “is not like” any of the exemplars enumerated in item 692.16, that it “made a series of rulings barring the further introduction by [government’s] counsel of evidence dealing with said exemplars,” and that “[the] defendant then introduced evidence relating to the production and distribution of two domestic vehicles said to be similar to the imported vehicle.” Finally, the court stated that what it found lacking in the original record was an appropriate pleading to give judicial effect to the evidence and, that defect having been remedied under the amended protest, the claim for classification under item 692.16 was sustained.

The conclusion of the court was based primarily on the court’s holding that the language of the superior headnote for items 692.02 and 692.10 was limited to “single purpose transport vehicles, i. e. motor vehicles which transport either persons or articles.” Both parties disagree with that position. So do we. It appears obvious to us that automobile trucks such as come under item 692.02 transport the driver and often one or more passengers in addition. On the other hand, passenger vehicles which obviously would fit under item 692.10 practically all have trunk space which may be used to carry goods. As between the TSUS items for automobile trucks and other motor vehicles, including passenger cars, the evidence clearly points to classification in the former. The rear cargo space in model 265 obviously is characteristic of a truck, more particularly of the ordinary pickup truck with a single seat in the cab for the driver and one or two passengers. We do not see that the addition of a removable second seat and corresponding rearward enlargement of the cab to permit carrying a larger work crew take the model 265 out of the truck category. Volkswagen’s aforementioned pamphlet, exhibit 4, like other VW advertising in evidence, includes both the single-cab pickup and the double-cab pickup as members of “The Volkswagen family of trucks.” We therefore hold model 265 to be a “truck.”

As to classification of model 265 as a vehicle “specially constructed and equipped to perform special services or functions” under item 692.16, the aforementioned stipulation by Volkswagen’s counsel regarding the exemplars therein is of interest, along with the fact that the court below ruled the government’s offer of evidence regarding them was irrelevant. But even without these considerations, the nature of the exemplars is so well known that judicial notice can be taken that they all are specially equipped to perform special services or functions other than merely transporting goods or persons from one point to another. They are all provided with fixed equipment to perform special services or functions. Volkswagen’s evidence was all introduced at the first trial where its sole claim was to item 692.10. We find nothing in that evidence which persuades us that model 265 was specially equipped to perform special services or functions in the sense we find indicated by the exemplars in item 692.16. The only thing “special” resides in a redistribution of passenger versus cargo carrying facilities. There is no “special equipment.”

The Customs Court considered these exemplars to be “at best directory” and found “nothing in the language of the statute or in its legislative history indicative of a limitation on classification in terms of the degree of special construction and equipment” required. We do not agree with the court’s conclusion. In the absence of some restriction on the breadth of the words “specially” and “special” in item 692.16, the mere addition of various available optional equipment or accessories might be considered to bring an otherwise conventional vehicle within the item — a result obviously not intended by Congress.

Thus, we find that Volkswagen has failed to meet its burden of proving the district director’s classification incorrect and either of its claimed classifications correct. See United States v. Good Neighbor Imports, Inc., 33 CCPA 91, C.A.D. 321 (1945); United States v. Loffredo Bros., Gehrig Hoban & Co., Inc., 46 CCPA 63, C.A.D. 697 (1958); United States v. Victoria Gin Co., 48 CCPA 33, C.A.D. 759 (1960). The classification in item 945.69 (provided for in item 692.02) must stand.

The judgment of the Customs Court is reversed.

Reversed.

      . Item 945.69 arose from Presidential Proclamation No. 3564, the so-called “chicken war” proclamation, which restored the full statutory rate of duty on, inter alia, automobile trucks in retaliation for European Economic Community discrimination against American poultry products. See United States v. Star Industries, Inc., 59 CCPA 159, C.A.D. 1060, 462 F.2d 557 (1972), cert, den., 409 U.S. 1076, 93 S.Ct. 678, 34 L.Ed.2d 663 (1972).

      . While that may well be the implication of counsel’s statements and objections, his most explicit statement appears to have been:
      I hereby stipulate that the merchandise at bar is not a fire engine, a mobile crane, a wrecker, a concrete mixer, or a mobile clinic.


text:
    Application of Stephen F. ROYKA and Robert G. Martin.
    Patent Appeal No. 9092.
    United States Court of Customs and Patent Appeals.
    Feb. 7, 1974.
    Michael H. Shanahan, Rochester, N. Y., of record, for appellant; Thomas M. Webster, Rochester, N. Y., Boris Haskell, Washington, D. C. (Paris, Haskell & Levine), Washington, D. C., of counsel.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Fred W. Sherling, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claims 28 and 30-36 of application serial No. 648,701, filed June 26, 1967, entitled “Responsive Answer System.” We reverse.

The Invention

The appealed claims are directed to a device in the nature of an answer sheet for use in self-instruction and testing. The answer sheet may be associated with questions or separate therefrom. The essential features of the invention are that there are printed on the answer sheet in “response areas” meaningful information in permanent printing and confusing information in printing which can be removed, as by an eraser, both being legible so that a student, seeing a choice of answers to a question, must make a selection. Having made a selection, he then applies an eraser to the selected response area and some of the information will be readily removed. What remains advises him of the correctness or otherwise of his answer. The following figures from the drawings are illustrative:

Fig. 1A shows two response areas to a given question before any removing action by the student has taken place and Fig. IB shows the permanent information remaining in each after erasure of the removable information. Of course, if the student makes an initial choice of area A, showing up “YES” or some other indication of a correct answer, he will not need to proceed further and erase the B area. In a modified form of the invention, a wrong selection, plus erasure, may expose, instead of or in addition to a statement that the answer is wrong, a number or other reference to further material which is to be studied.

A preferred method of printing the permanent meaningful information and the removable confusing information is by that type of xerography in which a fusible toner is used, the permanence of the printing depending on the extent to which the toner image is “fixed” or fused by heat. By successive printings of the two' kinds of information with fixing to different degrees, one image can be made permanent and the other made subject to easy removal, both images retaining such similarity of appearance that the user of the answer sheet cannot tell them apart.

Claim 28 is the principal claim, all others being dependent thereon, and reads as follows:

28. A device for selectively indicating information comprising
a support having response areas for presenting information for selection, permanent printing indicative of meaningful information permanently fixed to said support within a response area, and
removable printing indicative of confusing information removably fixed to said support within a response area,
said meaningful and confusing information being substantially legible even when said permanent and removable printing are fixed over one another on said support,
said permanent and removable printing being substantially similar such that an observer cannot determine which information is permanent and which is removable
whereby the information within a response area is selected by attempting to remove the printing therein with the failure to remove printing identifying meaningful information.

Claims 30-36 add limitations which need not be considered except for noting that claims 33 and 34 alone specify the use of a xerographic toner, for which reason they were rejected on a different ground from the other claims.

The Rejection

The following references were relied on:

Reid et al. (Reid) 356,695 Jan. 25, 1887 Bernstein et al.
(Bernstein) 3,055,117 Sep. 25, 1962
Lein et al. (Lein) 3,364,857 Jan. 23, 1968
(filed Feb. 2, 1966)

Claims 28, 30, 31, and 32 were rejected as anticipated under 35 U.S.C. § 102 by Bernstein; claims 28, 31, 32, 35, and 36 were rejected as anticipated under § 102 by Reid; and claims 33 and 34 were rejected under 35 U.S.C. § 103 for obviousness, on either Bernstein or Reid in view of Lein. These were the examiner’s rejections and the board affirmed them, adhering to its decision on reconsideration.

Bernstein discloses an answer sheet in which printed information representing a response is “temporarily concealed from the observer” and he discloses a number of different ways of effectively concealing the response. His specification states:

The objects of the invention are accomplished by utilizing the hiding media to confuse the participant and to render the response and the hiding media indistinguishable and thus conceal the presence, absence, nature or position of the response from the participant. This may be effectuated by careful attention being paid to a number of factors including the design, color and position of the hiding or confusing media.

Fig. 1 of Bernstein’s drawings, illustrates some of his concealing means:

The following is the written description:

Referring now to the drawing, FIG. 1 illustrates some of the many optically confusing patterns which may be positioned between the printed structure to be concealed and the point of observation. Column 11 shows the information which is to be concealed. This information is repeated in columns 12 through 16 but in each case is concealed by a pattern in accordance with the present invention. Column 12 utilizes a pattern comprising an alphabetical maze in both line and half tone screen. Column 13 utilizes a pattern comprising an absorbing field. having a plurality of irregular dot-like interstices. Column 14 utilizes a pattern comprising a maze of plus signs combined with dots. Columns 15 and 16 illustrate irregular and non-repetitious patterns.

Bernstein says that if at least 50% of the response is actually covered by the opaque portions of the confusion pattern, complete concealment is obtained. He also says that added means of concealment may be used, such as scoring and embossing and perforating the paper in order to scatter the light or let it shine through.

Reid is entitled “Transformation Picture and Print.” The invention is said to be useful for advertisements, Christmas cards, birthday cards, valentines, and the like and as a source of amusement and instruction for children. It consists of a picture or print, part of which is permanently printed and part of which is removable from the paper on which it is printed. For the latter various soluble undercoatings or inks are described. If the picture is washed with a solvent, which may be water, the removable part disappears and the pictorial and/or typographic matter changes. The invention is illustrated by a typical nineteenth century temperance propaganda piece depicting the evils of drink. In the finished picture there are- three scenes from left to right: Scene 1, the innocent child leads her father home from the pub; Scene 2, Father sits slumped in the kitchen chair with his bottle beside him, the family wash hanging above his head, this picture being entitled “The Effects of Drink”; Scene 3, Mother stands in front of a sign reading “Pawn Shop.” Across the bottom of the picture is a legend which says “Wash the above and see what water will do.” Fig. II shows the result of washing with water: Scene 1, a handsome young man and his happy daughter stroll on the street; Scene 2, Father sits erect in a well-appointed room at a cloth-covered table, apparently having a cup of tea, obviously a gentleman; Scene 3, Mother beams from the sideline and the Pawn Shop sign has vanished. Two new subscriptions appear and the words “The” and “Drink” have disappeared, the resultant being a new picture title reading “The Beneficial Effects of Temperance.” “The Beneficial” and “Temperance” were covered by some soluble opaque in the original picture. No doubt the overall effect is instruction. Perhaps there was amusement in bringing about the transformation.

Lein relates to xerography and is relied on only for its disclosure of the re-movability of partially fused toner and the permanence of fully fused toner.

OPINION

As to the § 102 anticipation rejections, it will suffice to consider independent claim 28. If it is not fully met by Reid or Bernstein, neither are the more limited dependent claims. It is elementary that to support ah anticipation rejection, all elements of the claim must be found in the reference. We do not find claim 28 anticipated by Bernstein because, as we read the claim, it requires the display of legible meaningful and legible confusing information simultaneously, between which the user of' the device may make a selection before he undertakes to remove any of the information from the response area selected by him. The element we find most clearly missing, contrary to the reasoning of the examiner and the board, is the legible confusing information. The Patent Office proposes to read this limitation on Bernstein’s confusion patterns which are nothing but meaningless obscuring screens, eoTiveying no information and providing the user with no basis for making a selection, as called for by claim 28. In appellants’ device the legible confusing information — i. e., the wrong answers — are legible in the sense that they can be read as intelligible words, not merely a jumble of type serving to obscure the words of the wrong answers.

Appellants were fully aware of Bernstein and discussed its disclosures in their specification, distinguishing from this and other prior art, saying, in part:

The inventive concept hereof confuses not' by physical blocking as taught by the prior art, but by compounding, associating (including disarranging) permanent information with confusing information, usually at least some of which is similar in character to the permanent information as to render it impossible to tell which is permanent and which is removable confusing information. In the invention, generally no attempt is made to de-designedly physically cover the permanent information, but to confuse it beyond interpretation by the presentation of extraneous removable, confusing information.

Claims are not to be read in a vacuum and while it is true they are to be given the broadest reasonable interpretation during prosecution, their terms still have to be given the meaning called for by the specification of which they form a part. We cannot read the terms “legible” and “information” on Bernstein’s confusion patterns, as did the examiner and the board. They are not “legible,” as appellants use the term, and they convey no information.

As to anticipation by Reid, we find neither appellants’ basic concept nor the substance of claim 28 to be disclosed. Apparently the solicitor could find little to support the rejection in Reid for all he says in his brief — so far as claim 28 is concerned — is:

Reid discloses a sheet which may be used for instruction and which may have a removable design partly covering a fixed design * * *\ Therefore, the disclosure of the reference encompasses the arrangement wherein a removable design covers a fixed de-, sign with both designs being substantially legible.

But claim 28 does not call for an arrangement wherein a removable design covers a fixed design. It calls for response areas, which Reid does not have, containing meaningful information in permanent printing together with removable printing conveying confusing information, both legible at the same time, between which a “selection” can be made. The only choice offered to the user by Reid is to follow the instruction to wash the whole visible picture with water or other solvent, thus removing the overprinting, to discover what the permanent picture is. The Patent Office attempt to read claim 28 on this reference is a tour deforce. We hold that Reid does not anticipate for failure to meet the limitations of claim 28 to “response areas,” to the presentation of two categories of information (meaningful-permanent and removable-confusing) within such areas, and the possibility of selection. Anticipation requires a finding that the claimed invention be disclosed. It is not enough to say that appellants’ invention and the reference are both usable for instruction and both consist of permanent and removable printings on paper, as did the solicitor.

The dependent claims rejected with claim 28, as anticipated under § 102, are not anticipated since claim 28 is not anticipated. Some of them merely add features which are disclosed by the references and some do not. Insofar as they do not, they further negative anticipation. The examiner recognized this fact as to claims 33 and 34, which are limited to xerography, and therefore did not reject them under § 102. Similarly, he did not reject claim 30 on Reid or claims 35 and 36 on Bernstein. We find that claims 35 and 36 contain limitations which additionally distinguish from Reid. We have already noted that Reid has no “response areas” as required by claim 28 and so Reid does not disclose the structure of claim 35 which additionally requires both the correct and incorrect answers to appear within the same response area.

As to claim 36, the examiner said it “is merely a printed matter variation of the design of the reference,” Reid. This is not a valid reason for rejection. Printed matter may very well constitute structural limitations upon which patentability can be predicated. We have commented on this matter In re Jones, 373 F.2d 1007, 54 CCPA 1218 (1967) ; and In re Miller, 418 F.2d 1392, 57 CCPA 809 (1969), and will not repeat ourselves. The limitations of claim 36 are not remotely suggested by Reid.

There remains the § 103 rejection of claims 33 and 34. Do they, taken together with all of the limitations of claim 28 from which they depend, define obvious subject matter? The difference between claim 28 and these two dependent claims is that they add the limitations to xerography. If Bernstein and Reid showed the claimed invention except for xerography, the addition of the Lein reference would make the subject matter of the claims obvious. But that is not the situation here. Adding the knowledge of xerographic technology to Bernstein or Reid still does not make the invention of claims 33 and 34 obvious for the same reasons we have given above in discussing anticipation. The essence of appellants’ invention, as set forth in claim 28, is still missing notwithstanding the addition of the Lein reference and we see nothing in the combinations of references which would have made the invention obvious to one of ordinary skill in the art at the time it was made. We will, therefore, reverse this rejection.

The decision of the board is reversed.

Reversed.


author: PER CURIAM.

text:
    CHRYSLER CORPORATION, Plaintiff-Appellant, v. John T. DUNLOP, Director Cost of Living Council, et al., Defendants-Appellees.
    No. DC-18.
    Temporary Emergency Court of Appeals.
    Dec. 5, 1973.

      James A. Hourihan, Hogan & Hart-son, Washington, D. C., for appellant.

      Paul T. Michael, Dept, of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson, William C. White, Washington, D. C., on the brief) for appellees.
    Before TAMM, Chief Judge, and HASTIE and McGOWAN, Judges.

       Honorable Carl McGowan, United States Circuit Judge for the District of -Columbia Circuit, sitting by designation pursuant to 12 U.S.C. § 1904 (Supp. II1972).

      . Chrysler is a “price category I firm” (annual sales or revenues of $100 million or more) under Phase IV regulations and must notify COLC of any proposed price increase by filing a Form CLC-22 with the Internal Revenue Service.

   PER CURIAM.

Chrysler Corporation [hereafter, “Chrysler”] appeals from the denial of a preliminary injunction sought by appellant against appellees, Dr. John T. Dun-lop, the Cost of Living Council and others [hereafter, “COLC”]. On September 18, 1973, pursuant to Phase IV Price regulations, Chrysler filed a prenotification of a proposed price increase of 2.-29% or $72.80 per vehicle. COLC deferred consideration of the merits of Chrysler’s proposal by Order dated September 21, 1973, acting under authority of 6 C.F.R. § 150.154(c). Tracking the language of the regulation, COLC concluded that “the proposed price increase, if granted, would be of such magnitude and would have such an impact upon the economy as to be unreasonably inconsistent with the goals of the Economic Stabilization Program.” COLC further stated that “the objectives of the Economic Stabilization Program require proposed price increases in the automotive industry ... to be reviewed together and not on an incremental basis,” and that its consideration of proposed price increases for all automobile manufacturers would therefore be delayed until the completion of all current labor negotiations and the submission by all manufacturers of new prenotifications. After a petition for reconsideration was denied by COLC on November 5, 1973, Chrysler commenced this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. The trial court, on November 9, 1973, entered an Order denying Chrysler’s motions for a temporary restraining order and a preliminary injunction. From this order, Chrysler takes this appeal, and moves for summary reversal and preliminary injunction to issue from this court. For the reasons stated below we vacate the order of the trial court and remand for reconsideration of Chrysler’s motion for a preliminary injunction.

Section 211(d)(1) of the Economic Stabilization Act, 12 U.S.C. § 1904 Note (Supp. II 1972), sets out the standard for judicial review of COLC orders:

. . . no order of such agency shall be enjoined or set aside, in whole or in part, unless a final judgment determines that such order is in excess of the agency’s authority, or is based upon findings which are not supported by substantial evidence.

This court has previously articulated the requirements for preliminary relief under the Act. McGuire Shaft & Tunnel Corp. v. Local Union 1791, U.M.W., 475 F.2d 1209, 1215-1216 (Em.App.1973). The trial court must consider, inter alia, whether the party seeking such relief can show a substantial likelihood of success on the merits. Chrysler asserts that it can satisfy the “success on the merits” test with a showing that the COLC Order of September 21, 1973, deferring the proposed price increase was an order “not supported by substantial evidence” and thus violative of § 211(d)(1). The trial court, however, in its Memorandum Opinion filed November 9, 1973, stated as a conclusion of law that plaintiff was unlikely to prevail on the merits because it had failed to establish that the COLC Order was without rational basis or arbitrary or capricious, citing this court's opinion in Pacific Coast Meat Jobbers Assoc., Inc. v. Cost ’of Living Council (481 F.2d 1388, Em.App.1973). The trial court failed to go on to apply the standards of § 211(d) in an attempt to ascertain whether there is substantial evidence to sustain the order attacked by Chrysler. If there is not sufficient evidence, Chrysler would indeed have a substantial likelihood of prevailing on the merits, and preliminary relief might be proper.

We note that COLC’s September 21 Order identifies no evidence whatsoever in support thereof. We have previously approved the procedure, utilized here, of allowing a post-litigation affidavit to provide the substantial evidence needed to support a COLC order. Plumbers Local 519 v. C.I.S.C., 479 F.2d 1052 (Em.App.1973), and we consider it entirely proper in this case for the trial court to look to Dr. Dunlop’s affidavit for the requisite evidentiary support. This does not mean, however, that the requirement of substantial evidence is in any way diminished. Under examination, an affidavit may be found to supply only conclusory statements and not evidence.

We are aware of Chrysler’s argument here that § 150.154(e) does not permit a determination that the total effect of an industry’s proposed price increases would be economically detrimental to provide the basis for deferring, as here, a single manufacturer’s proposed increase. While we adhere to the basic tenet that the expertise of COLC is to be given great weight in questions of interpretation of its own regulations, see University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1068-1069 (Em.App.1972), this is not a carte blanche. In any event, the affidavits submitted to date do not provide a rational explanation for the deferral of Chrysler’s proposed price increase. We do not suggest that there might not be a rational basis, but observe merely that the present affidavits do not contain factual evidence to support the conclusion of economic impact inconsistent with the Economic Stabilization Program which the Commission must draw to invoke § 150.154(c).

Unlike the deferral provisions common in the area of utility regulation, § 150.-154(c) does not restrict COLC as to the duration of a particular deferral; deferrals could be of potentially infinite duration. This raises serious questions as to the legality of the suspension power. Such an open-ended power could constitute a denial of Due Process dependent, of course, on the facts of any particular ease. Consider, for example, the legality of a COLC suspension under § 150.-154(e) of a proposed increase which is approved after an extended period of deferral. There is no way in which allowance. of the increase could be made retroactive in order to recompense the company.

When COLC initially deferred Chrysler’s September 18th proposed increase on September 21, COLC said that it would “review this order on November 1, 1973.” COLC apparently did nothing until November 30, 1973, when it postponed decision for “10 more days.” Without checks, this practice could become a pattern of abuse.

Finally, we note that Chrysler represented to the trial court that if the price increase were allowed to go into effect, it would escrow all monies obtained as a result of such increase to be refunded if final judgment went against Chrysler. While this was done in the context of a motion for preliminary relief in the trial court, we are of the opinion that such a proposal by Chrysler should be considered by the trial court in determining whether COLC was in error in finding that the economic impact of the proposed increase was “of such magnitude and would have such impact upon the economy as to be inconsistent with the goals of the Economic Stabilization Program.” The Dunlop affidavit, providing the sole evidentiary basis for COLC’s order, does not address the effect, if any, that the Chrysler escrow proposal would have to lessen the undesirable impact of the proposed increase, but clearly it could, to some extent, reduce the impact. The residual economic damage that might still occur could well be fatal to Chrysler’s application. The point is, only, that such a proposal should be evaluated by COLC. If it determines that an escrow-repayment program does not sufficiently mitigate inflationary impact, COLC should so state and support its conclusion with substantial evidence.

In summary, we hold that because the trial court did not make findings of fact and conclusions of law on the question of whether the COLC Order of September 21, 1973, was supported by substantial evidence, the order denying the temporary injunction is vacated, and the cause remanded to the trial court for further consideration. We direct that the mandate shall issue forthwith.

So ordered.

      . Cost of Living Council Regulation 6 C.F.R. § 150.154 provides in pertinent part:
      During the 30-day prenotification period, the Council may issue an order disapproving, modifying, suspending or deferring a proposed price increase in whole or in part.
      (e) The Council may issue an order deferring a price increase, in whole or in part, if it finds that the proposed price increase is of such magnitude and would have such an impact upon the economy as to be unreasonably inconsistent with the goals of the Economic Stabilization Program.

      . COLC Decision and Order, September 21, 1973, J.A., Tab L at 6.

      . Id.

      . As our disposition of this appeal makes clear, we deny appellant’s motions for summary reversal and for relief to issue from this court.

      . See. e. g., Natural Gas Act, 15 U.S.C. § 717e(e) (1970) ; Federal Power Act, 16 U.S.C. § 824d(e) (1970).

      . OOLC Decision and Order, September 21, 1973, J.A., Tab L at 6.

      . Telegram from COLC to Chrysler November 29, 1973:
      MR. R. J. HELDER
      VICE PRESIDENT, COMPTROLLER
      DEAR MR. HELDER:
      NOTICE IS HEREBY GIVEN THAT THE COST OE LIVING COUNCIL HAS SUSPENDED ACTION ON YOUR PREN OTIEIC ATIONS OE PRICES, COSTS AND PROFITS, FORM CLC-22, FILED SEPTEMBER 18, 1973 AND NOVEMBER 2, 1973 PENDING FURTHER REVIEW OF THE ADDITIONAL DATA, OPINIONS AND TESTIMONY RECEIVED DURING THE AUTO HEARINGS HELD ON NOVEMBER 20 AND 21, 1973. THE SUSPENSION WILL CONTINUE FOR A PERIOD NOT TO EXCEED TEN DAYS AND, ACCORDINGLY, THE COUNCIL WILL NOTIFY YOU WHEN THIS SUSPENSION IS LIFTED.
      BERT M. CONCKLIN, ADMINISTRATOR OFFICE OF PRICE STABILIZATION