author: BALDWIN, Judge.

text:
    60 CCPA
    IMBERT IMPORTS, INC., et al., Appellants, v. The UNITED STATES, Appellee.
    Customs Appeal No. 5483.
    United States Court of Customs and Patent Appeals.
    April 5, 1973.
    Barnes, Richardson & Colburn, New York City, attys,, of record, for appellants. David O. Elliott, New York City, of counsel.
    Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Frederick L. Ikenson, New York City, for United States.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and CLARK, Justice (Ret.), sitting by designation.
   BALDWIN, Judge.

This appeal is from a judgment of the United States Customs Court, Second Division, Appellate Term, 67 Cust.Ct. 569, 331 F.Supp. 1400, A.R.D. 294 (1971), affirming the judgment of a single Judge sitting in reappraisement, 65 Cust.Ct. 697, 314 F.Supp. 784, R.D. 11718 (1970).

Both courts upheld the imposition, under the Antidumping Act of 1921, as amended, of dumping duties on fourteen entries of portland gray cement exported from the Dominican Republic between October 1962 and the end of March 1963, and entered in the port of San Juan, Puerto Rico. Only the dumping duties are in issue.

The statute principally involved here, section 201 of the Antidumping Act of 1921, as amended (19 U.S.C. § 160) reads in pertinent part as follows:

(a) Whenever the Secretary of the Treasury (hereinafter called the “Secretary”) determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States. The said Commission, after such investigation as it deems necessary, shall notify the Secretary of its determination, and, if that determination is in the affirmative, the Secretary shall make public a notice (hereinafter in this Act called a “finding”) of his determination and the determination of the said Commission. * * *
(c) The Secretary, upon determining whether foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and the United States Tariff Commission, upon making its determination under subsection (a) of this section, shall each publish such determination in the Federal Register, with a statement of the reasons therefor, whether such determination is in the affirmative or in the negative.

The “record” before us is entirely documentary, consisting of certified copies of papers filed with the United States Tariff Commission during an investigation it conducted, and the Commission’s “Determination of Likelihood of Injury,” TC Publication 87, 28 Fed.Reg. 4047 (1963).

This record reveals that the Assistant Secretary of the Treasury advised the Tariff Commission on January 21, 1963, that Portland cement, other than white nonstaining cement, from the Dominican Republic was being or was likely to be sold in the United States at less than fair value (LTFV). The Commission then issued a notice that it had instituted an investigation “to determine whether an industry in the United States is being or is likely to be injured, or is prevented from being established” by the importation of such merchandise into the United States. 28 Fed.Reg. 882 (1963). The Commission’s Determination, supra, with Chairman Dorfman dissenting, followed on April 19, 1963.

The majority of the Commission found that imports of Dominican LTFV cement were entered largely at the port of New York and were marketed almost exclusively in the metropolitan area of New York City. This area was held to be a “competitive market area” and the domestic plants that historically supplied Portland cement in the area were held to be “an industry” for purposes of the Antidumping Act. Its determination was that an industry in the United States was likely to be injured by reason of importation of LTFV Dominican cement.

The majority found that the Dominican producer had capacity to sell increased quantities of Portland cement in the United States; that the Dominican market had provided an outlet sufficient to take only half the potential production of the country’s cement plant and the plant has operated with considerable excess capacity even with substantial exports ; that, through sales at prices that were below those charges in the home market but sufficiently high to cover out-of-pocket costs and contribute to net return, the producer could achieve more complete utilization of capacity and a lowering of unit costs; and that the very substantial market in the New York metropolitan area constituted a continuing and attractive lure for the producer’s management seeking to expand production and reduce costs. It was also the view of the majority that domestic producers supplying the New York metropolitan area market had operated at about 70 percent of capacity; that not only did sales of imported cement at LTFV tend to repress prices in the marketing area but it was also difficult for domestic producers to compete therewith inasmuch as the price was based not on lower cost but on discrimination; that domestic producers were precluded from making complete use of their productive facilities as they would be able to do in the absence of such competition; and that, because of both legal and economic restraints, domestic producers would be unable to increase volume by resort to the same kind of price discrimination.

Appellants claim that the Tariff Commission’s injury determination is invalid. They base that claim on the following contentions:

(1) The Tariff Commission violated its statutory authority in basing its injury determination in part on the mere presence of sales at less than fair value.
(2) The Tariff Commission functioned as an agency within the meaning of the Administrative Procedure Act and its injury determination should be set aside as arbitrary, and
(3) The Tariff Commission’s determination, insofar as it encompasses Puerto Rican imports, is in clear and unnecessary excess of the competitive injury found to exist.

The Appellate Term rejected all three contentions in upholding the Commission’s determination.

Opinion

As to appellants’ first objection, it is apparent that the Commission did not find that sales of the imported cement at less than fair value were ipso facto injurious to a domestic industry but instead made a separate determination of injury. It is true that the Commission recognized the LTFV aspect of the sales as one factor involved in its determination. But that amounted to no more than giving weight to a consideration which was reasonably, if not necessarily, related to the conditions which it was required to analyze in determining whether there was a likelihood of injury under the statute. We therefore find that the Appellate Term was correct in holding that the Commission did not err in considering the LTFV aspect of the sales as a factor in its determination.

With regard to the scope of review of the Commission’s determination, involved in appellants’ charge that the determination here was arbitrary, this court stated in City Lumber Co. v. United States, 457 F.2d 991, 59 C.C.P.A. 89, C.A.D. 1045 (1972):

* * * It is not the judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 71 F.2d 332, 21 CCPA 110, T.D. 46446 (1933), compare United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). As stated in 'Kleberg, our review of determinations of injury or likelihood of injury in anti-dumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, “No question of law is raised when the exercise of * * * discretion is challenged.”

The statute itself, 19 U.S.C. § 160(a), authorizes the Commission to base its determination upon “such investigation as it deems necessary.”

Appellants contend that the grounds relied on by the majority of the Commission are shown to be arbitrary, for various reasons, by the facts recited in the dissenting opinion of Chairman Dorfman. For example, appellants challenge the Commission’s conclusion that the Dominican producer had continued incentive to sell at less than fair value in the New York area because the price level in that area declined after (1) the supply of Dominican cement ceased and (2) the largest plant in North America came into operation in this same competitive area. Appellants state:

Examined in the light of the fact that prices in the New York area had fallen sharply since Dominican cement ceased coming in and that the competitive market area was much less attractive than it had been * * it is difficult to understand how incentive to ship would not be less than in 1961 where injury was inconsequential or in 1962 when there was no finding of present injury. * * * To base a finding of likelihood of injury, as it comes down to in this case, primarily on the capacity of the facilities of the foreign producer is pure conjecture and inherently arbitrary. [Footnote omitted.]

Suffice it to say that for us to determine that the prices had declined to the point where sales would no longer allow more efficient use of the Dominican facilities or recovery of out-of-pocket costs would require us to weigh and balance the evidence in the same manner as the Tariff Commission, which even appellants admit is not our function. The opening of another New York cement plant merely adds to the store of evidence to be weighed. In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the Chairman’s dissent are not of sufficient moment to establish that the decision of the majority was arbitrary.

Accordingly, we are satisfied that the Commission here acted within its delegated authority and correctly interpreted and applied the law. In fact, we think, as did the Appellate Term, that the determination would pass the test as not being arbitrary, an abuse of discretion, or contrary to law, even if the more extensive scope of review under the Administrative Procedure Act (the provision now 5 U.S.C. § 706) were appropriate, as appellant contends. As it is, we make no express holding with regard to the applicability of that Act.

Finally, appellants urge that, since likelihood of injury was found in terms of factors subsisting in the New York metropolitan area, the imposition of dumping duty on the present importations to Puerto Rico was improper for lack of a reasonable relation to the injury found to exist. The Appellate Term found that the Commission has only the responsibility for making the determination of injury under the statute and does not prescribe the remedial action. Also, it agreed with the trial judge that 19 U.S.C. § 172, which defines “United States” for purposes of 19 U.S.C. § 160 in a manner which includes Puerto Rico, requires that the same duties be collected on importations to Puerto Rico as to the various states. We agree with both views and thus find the Appellate Term did not err on this point.

Accordingly, the judgment of the Customs Court is affirmed.

Affirmed.

      . The Commission also noted that “the instant case represents the second occasion in which the Treasury Department has advised the Commission that Portland cement from the Dominican Republic was being sold in the United States at less than fair value.” On the first occasion, in 1962, the Commission accepted certain assurances by the parties involved that continued effort was being made to avoid future sales at LTFY and declined to find that a domestic industry was “likely to be injured.” T.C.Pub. 54, 27 Fed.Reg. 3872 (1962).


source: Caselaw Access Project

author: MARKEY, Chief Judge. BALDWIN, Judge, LANE, Judge

license: Public Domain

text:
    Thomas W. TECHLER and Richard G. Thompson, Appellants, v. Iven R. NORSTRUB and John H. Threlkeld, Appellees.
    Patent Appeal No. 8877.
    United States Court of Customs and Patent Appeals.
    April 5, 1973.

      John D. Gould, Minneapolis, Minn. (Merchant & Gould, Minneapolis, Minn.), attorneys of record, for appellants.
    Kenneth D. Siegfried, Joseph E. Ryan, Minneapolis, Minn. (Schroeder, Siegfried, Ryan & Vidas, Minneapolis, Minn.), attorneys of record, for appellees.
    Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges.
   MARKEY, Chief Judge.

This is an appeal from the decision of the Patent Office Board of Interferences awarding priority to appellees, the senior party. Appellees were patentees of United States Patent No. 3,140,049 entitled “Cleaning Apparatus with Relief Control Valve,” issued July 7, 1964, on an application filed November 28, 1962. Appellants are patentees of United States Patent No. 3,246,845, entitled “Controls for High Velocity Washing Equipment,” issued April 19, 1966, on an application filed June 11, 1964. On July 1, 1966, appellees filed application serial No. 572,164 for reissue of their patent with claims 11-18 copied from appellants’ patent. The interference was declared after the Board of Appeals reversed the examiner’s rejection of the claims for lack of support in appellees’ application.

Appellants moved that the resulting interference be dissolved on two grounds: (1) that none of the counts is supported by the disclosure of appellees and (2) that appellees have no right to make the claims of the counts because of improprieties in the reissue oath. Consideration of the motion was deferred to final hearing. The board regarded the question of sufficiency of the reissue oath as not ancillary to priority and held it had no authority to decide it. Considering only the question of appellees’ right to make the count, it awarded priority to appellees. We affirm.

OPINION

Appellants’ charge that appellees cannot make the counts is based on appellants’ disclosure of two separate, spaced pressure responsive devices and the allegation that appellees’ disclosure includes but one such device. The elements of appellants’ claims in question are underlined in representative count 1:

In a pressure washer, a power-driven pump having an inlet and an outlet connected by a flexible conduit to a spray head including -a handle for directing the spray from said head, a first valve controlling flow through said head; conduit means for supplying liquid to the inlet of said pump and having a first branch connected to a source of water and a second branch connected to a source of cleaning fluid, a second valve controlling flow of water from said source through said first branch to said pump inlet, and a third valve controlling flow of cleaning fluid through said second branch to said pump inlet, the improvements which comprise; a bypass conduit connecting the outlet of said pump to the inlet thereof, an un loader valve interposed in said by-pass conduit and responsible to the pressure in said flexible conduit to open said unloader valve when the pressure in said flexible conduit exceeds a predetermined value; a first electric switch; electrically energizable means for actuating said second valve; a first electric circuit including said switch and electrically energizable means, and pressure responsive means communicating with the outlet of said pump and operatively connected to said switch whereby changes in pressure in said flexible conduit resulting from alternate opening and closing of said first valve is effective alternately to supply water and cleaning fluid to said pump when in operation.

Appellees dispose in their bypass conduit a structure shown schematically in its two functional positions as:

Appellees rely on In re Kelly, 49 CCPA 1359, 305 F.2d 909, 134 USPQ 397 (1962). In that case, cited also in the board’s decision, we held the structure shown schematically below in its two functional positions as supportive of two claim elements, i. e. a power driven actuator productive of an actuating force (a piston) and means for reducing said actuating force (an expanding cavity).

In Kelley we considered the fact of sequential operation wherein the expanding cavity functioned to reduce the actuating force and thereafter the piston, upon reaching the clutch, functioned as the power driven actuator. We neither find nor have been shown any reason to hold differently here where appellees’ valve piston unseats first to function as an unloader valve and then, through the rod, to operate the switch in further response to pressure in the bypass conduit.

Appellants’ arguments regarding “double inclusion” and ambiguity, as well as their reliance on Holdsworth v. Goldsmith, 29 CCPA 1047, 129 F.2d 571, 54 USPQ 90 (1942) and Kreidel v. Parker, 25 CCPA 1242, 97 F.2d 171, 37 USPQ 815 (1938) are all fully discussed in Kelley, supra. No useful purpose would be served in repeating that discussion. It is incorporated here as equally applicable to the facts before us. We would add that “double inclusion” is governed by 35 U.S.C. § 112 and is regarded as improper when it renders a count indefinite or where the separate structures are not clearly identifiable. Here we find the counts definite and the structures indentifiable.

Appellants do not contend that either the board or we have jurisdiction to decide the reissue oath question. Rather they urge that this question should have been disposed of in the Patent Office before any award of priority. That contention may well be correct. However, we see no reason why that matter should delay our determination of the ancillary matter of appellees’ right to make the counts as already raised and argued here. The Patent Office is obviously the proper place for appellants to initiate any efforts to overcome the alleged error in the treatment of the reissue oath question. Our decision on the appeal as it is now before us is not intended to preclude the Patent Office from taking any otherwise appropriate action in response to any such efforts and, if it is ultimately determined that the interference should be dissolved for inadequacy of appellees’ reissue oath, this court will be receptive to a motion to vacate the present decision.

For the foregoing reasons, we affirm the decision of the board.

Affirmed.

BALDWIN, Judge,

(concurring).

I fully agree with the majority’s disposition of this ease, and merely wish to add some further observations.

Insofar as appellants’ motion was based on alleged defects in appellees’ reissue oath, said motion amounted to a motion to dissolve on the basis that the counts are unpatentable to the applicants (appellees). Such a motion is apparently permitted under Patent Office Rule 231(a), and Rule 231(d) provides in pertinent part:

(d) All proper motions as specified in paragraph (a) of this rule * * * will be transmitted to and considered by the primary examiner * * *

While Rule 231(d) does not specify when such motions are to be transmitted, it is obvious that if the rule is to mean anything, transmittal must take place prior to termination of the interference. The appropriate procedure in this case would have been to transmit the reissue oath phase of the motion to the primary examiner directly rather than deferring it to final hearing. After final hearing, the board was not precluded from ruling on the ancillary question of appellees’ right to make merely because of the presence of this reissue oath phase of the motion in the case. However, I am of the opinion that the board should have transmitted the motion to the primary examiner prior to termination of the interference proceedings in the Patent Office. While the motion might also have been handled by a recommendation under Rule 259, the board found that the circumstances of this case did not warrant such a recommendation.

I agree with the majority that appellees’ application supports the counts and that initiation of any efforts to remedy the mistreatment of the reissue oath question should be done in the Patent Office. Thus I concur in the affirmance of the decision of the board.

LANE, Judge

(dissenting).

I conclude that the decision of the Board of Patent Interferences awarding priority to appellees should be reversed and that the case should be remanded to the Patent Office for a determination of the entitlement of appellees to a reissue patent under the provisions of 35 U.S.C. § 251. I agree with the conclusions of the majority concerning appellees’ support for the counts, and I agree that the interests of justice are served by presently reviewing and supporting the board’s holding on that question. However, I do not believe that the decision of the board in the form of an award of priority can be affirmed where priority has been awarded before a complete determination of all issues timely and properly raised. See Vandenberg v. Reynolds, 44 CCPA 873, 879, 242 F.2d 761, 765, 113 USPQ 275, 278 (1957). Leaving the further course of action to the Patent Office in the manner indicated in the majority opinion seems to me to be unsatisfactory since appellants, faced with a judgment of priority against them, will have no means of compelling examination of the reissue question. That is an inappropriate procedural posture in which to put the appellants, and one which could be readily avoided by reversing and remanding.

Since appellants have not contested the board's holding to the effect that the reissue oath question is not ancillary to priority and therefore not within its jurisdiction, I would agree that this is not an appropriate case for us to review that jurisdictional question. I do feel, however, that reflective current thinking in this area is needed. I am not convinced that there is sound underlying basis for precluding review by the board and this court of a decision respecting the sufficiency of a reissue oath, although there is admittedly a long precedential history of that proposition, the most recent expression of which appears in Pritchard v. Loughlin, 53 CCPA 1339, 360 F.2d 250, 149 USPQ 676 (1966). The court in that case saw no reason to depart from the established rule.

The rationale of the cases holding reissue challenges not to be ancillary to priority is that they are not in actuality matters of patentability suitable for ex parte consideration and unrelated to the interference proceeding. Patentability in general has long been held not to be ancillary to priority. See Glass v. DeRoo, 44 CCPA 723, 239 F.2d 402, 112 USPQ 62 (1956). Accepting this principle, it is nevertheless noted that in Norton v. Curtiss, 57 CCPA 1384, 1389, 433 F.2d 779, 783, 167 USPQ 532, 535-36 (1970), decided subsequent to Pritchard, this court held fraud to be a matter ancillary to priority. The theory expressed in Norton is that if fraud were proved, the party that committed it would lose its right to have the interfering claims present in its application and would therefore lose its standing as a party to the interference. We reaffirmed the Norton holding in Langer v. Kaufman, 59 CCPA -, -, 465 F.2d 915, 920-21, 175 USPQ 172, 175-76 (1972), observing a distinction between fraud and other grounds of unpatentability. It is clear, however, that fraud on the part of a party to an interference falls within the broad scope of patentability.

From a jurisdictional standpoint, inability to present interfering claims because of an insufficient reissue oath appears indistinguishable from inability to present claims because of fraud. In each situation, the charges, if true, render one of the parties incapable of presenting interfering claims from which it follows that the party is not a proper party to the proceeding.

Whereas analysis of a specific contention under the jurisdictional standard of ancillarity in the past has focused on the relationship of the contention to a contention of unpatentability, I suggest that in the future the focus might as logically be the relationship of the contention to a contention of fraud. Most importantly, there does appear to be a need to reexamine the jurisdictional questions present in an interference in light of the potential changes flowing from Norton and Langer.

As for the present case, I would reverse the board’s decision and remand the case to the Patent Office for consideration of the reissue question by the appropriate official or tribunal.


author: RICH, Judge. BALDWIN, Judge

text:
    INDUSTRIAL NUCLEONICS CORPORATION, Appelant, v. Edward J. HINDE, d.b.a. Hinde Engineering Co., Appellee.
    Patent Appeal No. 8858.
    United States Court of Customs and Patent Appeals.
    April 5, 1973.

      Edward M. Prince, William T. Bullinger (Cushman; Darby & Cushman, Washington, D. C.), attorneys of record, for appellant. William T. Fryer, III, Baltimore, Md., of counsel.
    Jack M. Wiseman (Rosenberg & Wise-man, San Jose, Cal.), attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation.
   RICH, Judge.

This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board, abstracted at 166 U.S.P. Q. 160 (1970), dismissing appellant’s opposition to the registration by appellee of ACCURA-FLO, application serial No. 242,820, filed April 6, 1966, claiming first use March 9,1966. We affirm.

The goods for which appellee seeks to register the mark are “a metering flume used for the measurement of sewage and industrial waste and allied solutions.” The record shows that the flumes sold by appellee under the mark are of two kinds, the Palmer Bowlus flume and the Parshall flume. They are simple mechanical structures of sheet metal or reinforced plastic through which fluid is conducted, in an open channel and not under pressure, the rate of flow being measured by taking a visual depth measurement and then referring to a table or chart to determine the rate of flow. Invoices show a unit price ranging from $90 to $835, depending on type and size.

Appellant opposes registration as the owner of the mark ACCURAY for which it has the following five Principal Register registrations for the goods listed:

No. 585,217, Feb. 2, 1954, “AccuRay” in stylized script, for Industrial beta gauges used in measuring the weight thickness, and area of sheet materials
No. 646,469, June 4, 1957, “ACCURAY” plain block letters, for Radiation gauges used in measuring the physical properties of materials, and control equipment which includes such gauges for regulating industrial processes
No. 714,707, May 2, 1961, “ACCURAY” plain block letters, for Statistical computation and data reduction systems and component apparatus therefor including computers, counters, classifiers, evaluators, timers, alarms, and information indicators
No. 723,084, Oct. 24, 1961, “ACCURAY” plain block letters, for Material handling systems and component apparatus therefor including conveyors, electrical and mechanical controls, identifiers, routers, counters, classifiers, and sorters
No. 799,849, Dec. 7, 1965, “AccuRay” similar to 585,217, for Moisture and temperature measuring apparatus and systems.

Appellant is a large manufacturer of industrial measurement and control equipment and systems for measuring such things as thickness, density, fluid level, moisture contents, mass flow rate, and other process variables. Much of the equipment depends on the use of emissions from radio-active materials in conjunction with detectors and amplification, recording and control equipment. In conjunction therewith, the mark AccuRay, usually displayed in script form with a capital “R” in advertising literature, is evidently intended to suggest accurate measurement by some radiation means. It is apparent that AccuRay is also used as the company’s house mark. For the most part, the goods are very expensive with common unit prices of the order of $2,500 or far higher.

Priority of use and registration in appellant is not in question. The board found, and we accept the finding as in accord with the evidence, that,

The goods of both parties are sold to the same class of purchasers and are used in connection with sewage and industrial wastes. Opposer has also shown that its gauges can be used in conjunction with metering flumes to detect and measure the level of sewage or industrial waste passing through the flume.

The sole remaining issue here is whether the concurrent use of the parties’ marks on their respective goods is, within the meaning of 15 U.S.C. § 1052(d), likely to cause confusion, or to cause mistake, or to deceive, to the presumed damage of appellant. In determining this question it is necessary to consider the marks, the goods, and all the circumstances surrounding their sale and offering for sale, insofar as these are made known to us by the evidence.

The board correctly held that, among other things, the marks must be considered in their entireties. After discussing their obvious similarities and differences and the suggestiveness of their component parts, ACCURA, FLO, and RAY, as applied to the wares, the board concluded:

In our opinion the differences in appearance and sound between “ACCURA-FLO” and “ACCURAY” are substantial when considered in. their entireties. And while each of the marks suggests, in the context of each mark, accuracy, this similarity is not believed sufficient to lead the type of purchasers for the goods of the parties to assume a single source of [sic, or?] origin.

The soundness of this judgment is, of course, the only question we have to decide.

We agree that visual inspection and vocalization of the marks bring out substantial differences in sound, appearance, connotation, and “commercial impression.” These differences might not be sufficient if we were dealing with off-the-shelf items purchased by all manner of people. But we think the fact which fully justifies the board’s conclusion in this ease is that both parties sell their goods to discriminating purchasers under conditions calculated to insure care in discerning the source or origin of the goods. The following passages from appellee’s brief, which clearly conform to the evidence of record, show the situation:

Applicant’s “Aecura-Flo” measuring flumes are sold to public agencies and manufacturing institutions on the recommendation of consulting engineers, who specify the item to be purchased by drawings and specifications. * * *
Opposer sells density analyzers and level detectors to public agencies and industrial plants for use in metering stations in sewage treatment plants, in industrial waste plants and in municipal water works. * * * Opposer deals with construction and consulting engineers, sewage and industrial waste engineers and public agencies.

Under these conditions we see no error in the board’s conclusion that there is no likelihood of confusion etc. We think purchasers would inevitably be aware of the actual source of the goods.

Our decision of some years ago in a case involving appellant and its ACCURAY mark, in which it lost an opposition to the registration of ACCUDATA, Industrial Nucleonics Corp. v. Minneapolis-Honeywell Co., 328 F.2d 942, 51 C.C.P.A. 1078 (1964), has been discussed by both parties. Several other cases have been cited as precedents to be followed. As we have said innumerable times, prior decisions on other marks for other goods are of very little help one way or the other in cases of this type. Each case must be decided on its own facts and the differences are often subtle ones. Appellant feels that the marks in the prior Nucleonics case were not as close as are the marks in the present case. Our impression — if it be of any present significance — is that the reverse is true, considering the marks in their entireties.

Appellant asks us to resolve doubt against the newcomer, in accordance with the well-established rule, but in spite of its efforts to raise one we find we have no doubt to be resolved.

The decision of the board is affirmed.

Affirmed.

BALDWIN, Judge

(dissenting).

I must respectfully disagree that “purchasers would inevitably be aware of the actual source of the goods” here. The class of purchasers involved in this case is very similar to the “engineering firms” involved in Torr X-Ray Corp. v. Sierra Engineering Co., Cust. & Pat. App., 471 F.2d 1247 (1973) in which we held that the use of stylized RADI-FLUOR 360 on fluoroscopic testing units would be likely to cause confusion, mistake, or deception in view of the registered mark RADIFLO for leak testing apparatus. Engineers are not immune from confusion as to source of goods.

In the present case, the record establishes that appellant’s mark is well established in industry for a wide variety of measuring and testing devices and systems. The industries served by apparatus bearing appellant’s mark include the sewage industry, the very industry in which most of appellee’s flumes are used. Appellant’s ACCURAY devices are used in conjunction with just such flumes as appellee’s. One of appellant’s systems consists of a source of radiation mounted on one side of a flume, with a radiation detector mounted on the other side of the flume. The source and detector are used to sense the level of liquid in the flume, thus automatically indicating flow rate, instead of visually determining the liquid level and thus the flow rate. A radiation source and a detector have also been used to measure the density of the material going through the flume. In my opinion, those “consulting engineers, sewage and industrial waste engineers and [purchasing agents for] public agencies” familiar with either of appellant’s systems in which ACCURAY instruments are mounted on either side of flow-measuring flumes, when confronted with flow-measuring flumes bearing the mark ACCURA-FLO, would be likely to ascribe those flumes to the manufacturer of the ACCURAY systems. Such being the case, I would reverse the decision of the board.


text:
    Application of David D. McCUE and Thomas A. Brendle.
    Patent Appeal No. 8891.
    United States Court of Customs and Patent Appeals.
    April 5, 1973.

      Edwin L. Reynolds, Washington, D. C., attorney of record, for appellants.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, sustaining the examiner’s rejection of claims 1 and 9 of appellants’ application. Claims 2-5, 7, and 8 have been allowed.

The Invention

Appellants’ invention relates to a device designed to provide a continuous record of the speed of a locomotive as it progresses along the track. The record is produced on a paper tape by a stylus movable transversely thereon. A first motor rotates a drive drum to move the tape while a second motor controls the transverse position of the stylus on the tape. The device includes an alternating current generator driven from a wheel of the locomotive to produce a signal of a frequency and amplitude proportional to vehicle speed. That signal is converted to a direct current signal which is applied to a recording unit “in such fashion as to drive the paper record therein at a rate proportional to vehicular speed and also to actuate a stylus in proportion to the vehicular speed so as to provide a visual record on the paper.” Additional styluses actuated by individual solenoids may be provided to record various other events such as application and release of brakes. The auxiliary styluses are mounted in alignment on the same transverse line as the speed recording stylus.

The appealed claims read:

1. In a recording system for locomotives, in combination, a record paper system including drive means for moving a record paper linearly in proportion to the distance travelled by the locomotive, recording means for producing a visual record upon the record paper indicating the speed of the locomotive, and transducer means for actuating both said drive means and said recording means whereby the distance travelled and locomotive speed records cooperatively produced thereby stem from a common signal source, said transducer means having a single output signal proportional to locomotive speed connected to both said drive means and said recording means.
9. In the recording system as defined in claim 1 including a plurality of auxiliary styluses mounted in alignment with said recording device tranverse to the direction of record paper travel, and individual solenoids for actuating respective auxiliary styluses in accord with events other than vehicle speed.

The References

Parrish discloses a speed recording apparatus for locomotives, a portion of the control circuit of which is shown in the following excerpt from Fig. 1 thereof:

The drawing shows an assembly including gears 18 and 20 which is driven from a roller 17 engaging a locomotive driver wheel 16 and which drives two interrupters 19 and 21 to actuate switches 61 and 22 respectively. Switch 22 acts through an electrical circuit to drive a paper tape in a recorder in proportion to the distance the locomotive travels. Switch 61 acts through an electrical circuit to control the transverse position of a stylus on the tape to indicate locomotive speed.

Wait discloses a recording system for locomotives which includes, in addition to a stylus for recording speed on a paper tape, a plurality of auxiliary “pencils” or styluses actuated in accordance with other events. Wait states the “points of these [auxiliary] pencils are all arranged substantially on the same transverse line” as that of the pencil or stylus for recording speed.

The Rejection

The examiner rejected claim 1 as fully met by Parrish under 35 U.S.C. § 102 and claim 9 as obvious over Parrish in view of Wait under 35 U.S.C. § 103.

After expressing its agreement with the examiner as to both claims the board stated:

In construing these claims, we have followed the conventional practice giving the terms used therein the broadest meaning which within reason they will stand.
When the term transducer is given its dictionary meaning, i.e., a device actuated by power from one system and supplying power to a second system, we find that this term is definitive of the elements of Parrish which the Examiner asserts forms a transducer. This transducer means 17 and 18 has a single output signal proportional to locomotive speed, and is connected to both the drive and recording means, as recited in claim 1.
Claim 9, which recites additional stylii [sic] and their operating solenoids for recording additional operating conditions, is deemed to involve only an obvious modification of the prior art.
Wait, cited by the Examiner, shows that it is conventional in the art to use separate stylii [sic] and operating solenoids for recording other operating conditions as well as speed on the performance chart of a locomotive.

Opinion

The determination of this appeal depends on the meaning attributed to the word “transducer” in claim 1 and the breadth of the remaining claim terminology. Appellants contend that the board erred in its broad interpretation of “transducer” and in not finding the limitation of means for actuating both the drive and recording means “from a common signal source” to avoid anticipation by Parrish.

Appellants argue specifically that “the definition most generally accepted, particularly by authorities of a scientific nature, limits ‘transducer’ to a device which receives one kind of energy and delivers another.” They cite authorities which set out such a limited definition and urge that the existence of conflicting definitions renders “transducer” ambiguous, with the result that it must be construed in light of the specification. We find no merit in that position. The law is that an unpatented claim is given its broadest reasonable interpretation. See In re Carlson, 56 CCPA 1309, 1315, 412 F.2d 255, 260-261, 162 USPQ 233, 237 (1969) and In re Prater, 56 CCPA 1381, 1395-1396, 415 F.2d 1393, 1404-1405, 162 USPQ 541, 550-551 (1969). In their brief, appellants state:

The Board did not cite the dictionary in which that definition was found, but it may well have been Webster’s New 20th Century Dictionary which contains a definition corresponding to that used by the Board.

We find the board’s definition also supported by the definition given in Webster’s Third New International Dictionary (1961 ed.) at 2426:

transducer * * *: a device actuated by power from one system and supplying power in the same or any other form to a second system * * *. [Emphasis supplied.]

The meaning of the term “transducer" found by the board is plainly a reasonable one and we do not find it to give rise to any ambiguity in the claim language. Further, in conformity with the board’s position, we agree that “transducer” so defined finds full response in Parrish’s wheel 17 and gears 18 along with the shafts associated therewith which provide a “single output signal” as required in claim 1. The reference to a “common signal source” does not limit the claim to an electrical “signal” as appellants appear to urge and thus also fails to distinguish over Parrish.

Appellants further state:

The essential difference between appellants’ device and that of Parrish is that in the former the motion of the locomotive wheel is used to generate a single electrical signal which is simultaneously transmitted to and controls the paper drive and recording means whereas in the latter, the wheel motion generates two distinct sets of electrical impulses or signals which are separately transmitted to and control the said means. This is not an arbitrary difference since, if a single signal is used, any error in the signal will correspondingly affect both the drive and recording means, whereas if two signals are used, either signal may be in error without any error being present in the other.

In essence, their position is that Parrish’s device is not equivalent to theirs because the Parrish device does not perform the same function in the same way as their device. In their view Parrish’s “means” are required by the last paragraph of 35 U.S.C. § 112 to be equivalent to the “means” recited in appellants’ claims before an anticipation of the claims under section 102 can be made out.

We find no difference between the mode of operation of Parrish’s device and the mode of operation of the device defined by the claim under consideration. In terms of claim 1, the “drive means” and. “recording means” are not restricted to devices whose sole functions are to drive or record without any further manipulation of the single output signal supplied to them. Such a construction of those terms would exclude the very embodiment disclosed in appellants’ specification. For example, taking as “driving means” that to which the signal is delivered from appellants’ transducer means, and which results in driving the chart, the term must include a stepping motor which is intermittedly driven in accordance with the signal. The stepping motor includes a drive shaft which projects through a plate and carries a first pinion. The first pinion is in mesh with a gear carried by a second shaft which is also mounted on the plate and which carries a second pinion. A further gear reduction results from the mesh between the second pinion and a second gear on a third shaft which is also carried by the plate. The third shaft carries a third pinion which meshes with a third gear which is mounted on a fourth shaft which carries the driving roll of the paper tape recorder.

As appellants state, if error occurs in their single signal, both their driving means and their recording means will be affected in the same manner. But the same is true of Parrish — if something affects the accuracy of the speed of measuring wheel 17, such as slippage, or if one of the gears 18 lost a tooth, both the drive means and the recorder means will be equally affected. Of course, should a tooth be lost from breaker cam 19 in Parrish, which we think the term “recording means” is broad enough to include, one system will be in error while the other one will not, but the same would be true should appellants’ drive motor fail or should any of the gears between it and the drive roll lose a tooth. Finally, two shafts are required in Parrish’s device to carry the rotational speed signal to the “recording means” and to the “drive means.” While the disclosure in appellants’ application is scanty in this regard, appellants’ stylus-controlling device is clearly separate from their roll drive, and there are indications in both the specification and the drawings that separate wires convey the appellants’ single signal to those two devices. Thus difficulties in the shaft going to Parrish’s “drive means” would again correspond to difficulties in the wire going to appellants’ chart drive.

As to claim 9, we agree with the board that the use of aligned auxiliary styluses as by Wait is an “obvious modification” of Parrish. Appellants’ take the position that Wait’s styluses are “arranged in a group but not in alignment,” and that the arrangement in alignment “permits the use of a larger number of styluses than is possible with Wait's arrangement.” We see no reason why this would be so, since the bodies of Wait's styluses, which are on opposite sides of the line defined by their points on the recording paper, would seem to interfere with each other less than the bodies of appellants’ styluses which are aligned in parallel on the same side of that line. At any rate, the disclosure of Wait indicates that the level of skill in the art was such that it would have been obvious to so arrange Wait’s styluses to accommodate a greater number thereof.

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

Affirmed.

      . Serial No. 687,589, filed December 4, 1967.

      . U.S. Patent No. 2,342,687 issued February 29, 1944.

      . U. S. Patent No. 2,325,451 issued July 27, 1943.


author: JAMES M. CARTER, Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 11, Defendant-Appellant.
    No. 9-2.
    Temporary Emergency Court of Appeals.
    Jan. 26, 1973.

      Julius Reich, Brundage, Neyhart, Miller, Reich & Pappy, Los Angeles, Cal., for appellant.
    Kyle D. Brown, Carl M. Gould, Hill, Farrer & Burrill, Los Angeles, Cal., for appellee' NECA.
    Harlington Wood, Jr., Washington, D. C., William D. Keller, U. S. Atty., Los Angeles, Cal., Matthew Schumacher, Los Angeles, Cal., William E. Nelson, Washington, D. C., and Paul T. Michael, Alexandria, Va., for appellee United States of America.
    Before CARTER, CHRISTENSEN and ESTES, Judges.
   JAMES M. CARTER, Judge.

This is an appeal from a judgment granting an injunction against appellant for violating Pay Board Ruling No. 34 by entering into agreements which provided for the deposit in escrow accounts of wages and benefits unapproved (in fact, disapproved) by the Construction Industry Stabilization Committee (hereafter CISC).

The sole question presented by the appeal is whether the District Court correctly held that payment into escrow of the unapproved portion of the wage increase, as demanded by appellant, was a violation of Pay Board Ruling No. 34 and 6 C.F.R. 201.17 (6 C.F.R. 200.41) of the Pay Board regulations. We affirm.

Appellant is the collective bargaining representative for approximately 6,000 electrical workers in and about Los Angeles, California. The National Electrical Contractors Association, Los Angeles County Chapter (hereafter NECA) is the bargaining representative for approximately 200 members of the Association. Approximately 400 other companies, not associated with NECA, have agreed to be bound by the agreement reached between NECA and appellant.

NECA, a defendant below, did not appeal but has filed a brief in support of the position of the United States.

The appellant and NECA entered into an “Inside Wiremen’s Agreement” on September 1, 1970 for the period 1970 to 1973. It provided inter alia for an increase in wages and benefits totaling $1.71 per hour, to be effective on June 1, 1972.

The Economic Stabilization Act of 1970 (P.L. 91-379, 84 Stat. 799, Aug. 15, 1970) authorized the President to issue such orders and regulations as he deemed appropriate to stabilize wages and salaries at levels not less than those prevailing on May 25, 1970. The President implemented the statute by Executive Order 11588 (36 F.R. 63.39, April 3, 1971) . In part it provided for the creation of CISC. The CISC was created to assure conformance of all wage and salary increases within the construction industry to the provisions of the order. Section 4(c) of Executive Order 11588 also provided that “[ujnless and until an increase in wage or salary has been approved in accordance with the provisions of sections 3(a) and 4 of this order, it shall be a violation of this order to put such wage or salary increase into effect.”

Thereafter, on October 15, 1971, the President issued Executive Order 11627 and, under the authority of the amendments to-the Act (Public Law 92-210, 85 Stat. 743, December 22, 1971), issued Executive Order 11640 on January 27, 1972. By virtue of Executive Order 11627, the Pay Board was created, and continued by Executive Order 11640 to establish criteria and issue regulations for the purpose of stabilizing wages and salaries on a national basis. These later Executive Orders also modified Executive Order 11588 to bring it within the framework of the stabilization program by transferring certain powers formerly vested in the Secretary of Labor to the Chairman of the Pay Board.

Section 1(a) of Executive Order 11640 provides that:

“ * * * no person shall, directly or indirectly, pay or agree to pay, in any transaction, wages or salaries in any form, or to use any means to obtain payment of wages and salaries in any form, higher than those permitted hereunder, whether by retroactive increase or otherwise.”

The Pay Board issued Regulations on March 7, 1972, 6 C.F.R. 201.17 (37 F.R. 4899), providing in part that it was a violation to

“(a) Pay any portion of a wage and salary increase not authorized by such regulations or Pay Board decision ;
(b) Receive or accept any portion of a wage and salary increase not authorized by such regulations or Pay Board decision; . . . ”

The Regulations in this respect which were revised November 23, 1972, 6 C.F. R. 201.41 (37 F.R. 24960) spell out more precisely the violations.

In performing the duties spelled out in the Executive Orders, the Pay Board issued Pay Board Order No. 2 effective November 14, 1971. (36 F.R. 21857, Nov. 16, 1971) This order authorized the CISC to administer its policies with “respect to wages and salaries and other economic adjustments” within the construction industry. This order further provided that the approval of the CISC was required before any economic adjustments contained in collective bargaining agreements within the construction industry could be implemented.

Pay Board Order No. 2 was amended on April 25, 1972. (37 F.R. 8140, April 25,. 1972) The amended order continued the functions of CISC in overseeing and approving all economic adjustments scheduled to be implemented within the construction industry. Furthermore, section 2 of the amended order provided that:

“All wage and salary increases and other economic adjustments contained in collective bargaining agreements in the construction industry scheduled to take effect on or after August 16, 1971 require approval of CISC regardless of the number of employees involved.”

On May 9, 1972, the Pay Board issued Ruling No. 34. (37 F.R. 9350, May 9, 1972) On December 15, 1972, Pay Board Ruling No. 34 was amended and reissued as Pay Board Ruling No. 125. (37 F.R. 26708, December 15, 1972)

Pay Board Ruling No. 125 was made after the judgment below, entered October 10, 1972, but brings into focus more clearly the prohibition against escrowing proposed wage increases which have not been approved by CISC.

The proposed increase, to become effective June 1, 1972, of wages and benefits contained in the “Inside Wiremen’s Agreement” of September 1970, was submitted to CISC.

On April 26, 1972, CISC decided that $1.00 of the total of $1.71 was approved and could be implemented on June 1, 1972.

On May 5, 1972 appellant sent a letter to all parties covered by the Agreement, contending that, notwithstanding the decision of CISC, the employers were still legally obligated to pay the portion of the wage increase that had not been approved ($.71), and demanding the portion be placed into an escrow account of the employers. On June 1, 1972, appellant asked reconsideration by CISC of its decision of April 26,1972.

On July 6, 1972, appellant renewed the demand of May 5, 1972, by a second letter to all parties covered by the Agreement. Enclosed were copies of a “Memorandum of Understanding,” copies of an escrow agreement, and monthly reporting forms to be completed and returned to appellant upon each deposit into the escrow accounts.

As a result of the demand certain employers entered into escrow agreements and began paying the amounts of the unapproved increase into the escrow accounts.

On July 27, 1972, CISC held a hearing on appellant’s request for reconsideration, and on August 2, 1972, CISC reaffirmed its decision of April 26, 1972 and appellant was notified that the continued existence of escrow accounts was a violation of applicable regulations and rulings.

The issue in Pay Board Ruling No. 34 was clearly stated — “Would it constitute a violation [of the Regulations] for an employer to place negotiated wage increases in an escrow account pending approval by the [CISC] ?” [Emphasis added]. In substance, the ruling held that placing the proposed wage increases in an escrow account would not violate Pay Board Regulations if payment of the funds put in escrow would not occur until the approval of CISC had been obtained; but that if CISC has finally acted, then the escrow agreement is unlawful.

Discussion

To state the case is to decide it. The major purpose of the stabilization program was to halt inflation which had infected and was damaging the national economy. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, v. John B. Connally, et al. (D.D.C.1971) 337 F.Supp. 737, 750.

If each party whose request for a wage increase was denied could circumvent the decisions by requiring monies to be paid in escrow, the integrity of the stabilization program would be seriously undermined. An escrow account would insure the creation of a sum of excess funds which, upon payment, could adversely affect the inflationary trends as soon as the controls were lifted.

It is beyond dispute that in light of Pay Board Rulings No. 34 and No. 125, the appellant and other parties to the escrow agreements paid and received a portion of the wage increase that had not been approved by CISC. This resulted in the violation of 6 C.F.R. 201.17 (6 C.F.R. 201.41).

Moreover, CISC has interpreted the Ruling to preclude the creation or continuance of escrow accounts after a decision has been rendered. This interpretation was communicated to the parties by a letter dated August 2, 1972.

Great deference is to be accorded to the interpretation of regulations and rulings issued by the administrative body. University of Southern California v. Cost of Living Council et al. (Em.App., 1972), 472 F.2d 1065, cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Lieb (Em.App., 1972), 462 F.2d 1161.

Appellant’s argument that the language in the “Memorandum of Understanding” to the effect that the money will be released from escrow “at such times as they may legally do so” is no justification for its conduct. Appellant’s demand on the contractor employers and the placement of wages in the escrow accounts did not occur until after CISC had already failed to approve the $.71 increase and, in fact, had disapproved it. The matter was no longer pending before CISC for approval when the escrows began.

Appellant’s contention that the CISC had not finally acted upon the wage increase in question when the escrows began is without merit. Nor is there merit to appellant’s speculative contention that the Pay Board or the Congress may in the future authorize payment of the unapproved portion of the wage increase.

The judgment is affirmed.

      . On November 23, 1972, the Pay Board regulations found in Title 6 of the Code of Federal Regulations were recodified with the result that some citations used in the District Court have changed since that time. Citations to the regulations used in the District Court will - appear first, with the citations to the new codification, if any, appearing afterwards in parentheses.

      . 6 C.F.R. 201.41 (37 F.R. 24960, November 23, 1972) of the Pay Board regulations provides in pertinent part:
      (a) In general. Except as provided in paragraph (b) of this section, it shall be a violation of the provisions of this chapter, subject to the sanctions, fines, penalties, and other relief provided in the Act, for any person to—
      (1) Payment. Pay, directly or indirectly, immediately or on a deferred basis, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its delegate;
      (2) Receipt. Receive or accept, directly or indirectly, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its- delegate;
      (3) Accessorial acts or attempts. Induce, solicit, encourage, force, or require, or attempt to induce, solicit, encourage, force or require, any other person to pay or to receive, directly or indirectly, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its delegate;

      . Pay Board Order No. 2 (36 F.R. 21857, November 16, 1971) provided in pertinent part:
      1. The Pay Board authorizes the Construction Industry Stabilization Committee, effective November 14, 1971, to administer the policies of the Pay Board with respect to wages and salaries and other economic adjustments in the building and construction industry. In other respects, Executive Order No. 11588 of March 29, 1971 remains in effect.
      2. All wages and salaries and other economic adjustments contained in collective bargaining agreements, whether scheduled to take effect in the period from August 16 through November 13, 1971, or scheduled to take effect after November 13, 1971 (whether or not previously approved by the Committee), now require the approval of the Construction Industry Stabilization Committee regardless of the number of employees affected.

      . Pay Board Order No. 2, as amended (37 F.R. 8140, April 25, 1972), provides in pertinent part:
      1. The Pay Board authorizes the Construction Industry Stabilization Committee (CISC) to administer Pay Board regulations to the extent applicable with respect to collective bargaining agreements in the construction industry. CISC shall also administer CISC “Substantive Policies” as approved by the authorized construction subcommittee of the Pay Board, which are attached as a supplement to this order.
      2. All wage and salary increases and other economic adjustments contained in collective bargaining agreements in the construction industry scheduled to take effect on or after August 16, 1971 require approval of CISC regardless of the number of employees involved.

      . Pay Board Ruling No. 34 (37 F.R. 9350, May 9, 1972) provided:
      Facts: To protect his bid price, a contractor desires to place negotiated wage increases (which represent the last increment in the current wage agreement) in an escrow account pending approval by the Construction Industry Stabilization Committee.
      Issue: Would it constitute a violation of Economic Stabilization Regulations, 6 CFR 201.17, 37 F.R. 4899 (March 7, 1972), for an employer to place negotiated wage increases in an escrow account pending approval by the Construction Industry Stabilization Committee?

        Ruling: No. If the wording of the escrow agreement places delivery of the wage increases on the condition of approval by the Construction Industry Stabilization Committee, then until the performance of that condition, the legal title to the wages held in escrow remains in the employer grantor and no title or interest in the wages vests in the employee grantees. Section 201.17, among other things, prohibits the payment or receipt of any portion of a wage and salary increase not permitted by Pay Board regulation or decision. Accordingly, while the wage increases remain in the escrow account pending the condition of approval for delivery, no payment of wages is made by the employer nor is any portion of the wage increase received by the employees. Note, however, if the wording of the escrow agreement is such that title to the wages will flow to the employees at some future date even though the approval by CISC has not been obtained (e. g. “when controls are lifted * * *”), such wages and salaries would be considered paid in the year put in escrow.

      . Pay Board Ruling No. 125 (37 F.R. 26708, December 15, 1972) provides:

        Facts. Contractor X must obtain the approval of the Construction Industry Stabilization- Committee, a delegate of the Pay Board, for a wage increase provided in a union contract. The contractor must also obtain Pay Board approval for a wage increase for his nonunion employees. To protect his bid price, the contractor desires to place the two separate wage increases in question into an escrow account pending approvals by C.I.S.C. and the Pay Board, respectively. The portions of the wage increases in the union contract which are disapproved by C.I.S.C., if any, and the portions of the nonunion wage increases which are disapproved by the Pay Board, if any, will revert to the employer upon such disapproval.

        Issue. Would it constitute a violation of Economic Stabilization Regulations, § 201.41, 37 F.R. 24971 (1972), for an employer to place negotiated wage increases in an escrow account pending approval by C.I.S.C. and the Pay Board, respectively?

        Ruling. No. Section 201.41 prohibits the payment or receipt of any portion of a wage and salary increase not permitted by the Economic Stabilization Regulations or by decision or order of the Pay Board or its delegate. In the situation where wage increases are delivered to and remain in an escrow account pending approval by either C.I. S.C. or the Pay Board, depending on which body has jurisdiction, with reversion to the employer upon disapproval, such increases are neither paid by the employer nor received by the employees. Note, however, if the escrow agreement does [not] provide for reversion to the employer in the event of, and immediately upon denial of the exception by C.I. S.C. or the Pay Board, such wages and salaries would be considered paid and received in the year that such wages and salaries are placed in escrow and such payment would constitute a violation of the regulations. See examples (4) and (5) of Economic Stabilization Regulations, § 201.41, 37 F.R. 24971 (1972).
      (Because of a printer’s error, the bracketed word “not” above was excluded from the ruling. The error was corrected in 37 E.R. 27615, December 19, 1972.)


author: ESTES, Judge.

text:
    McGUIRE SHAFT AND TUNNEL CORPORATION, a corporation, Plaintiff-Appellee, v. LOCAL UNION NO. 1791, UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants. OLD BEN COAL CORPORATION, a corporation, Plaintiff-Appellee, v. LOCAL UNION NO. 1124 OF UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants. SOUTHWESTERN ILLINOIS COAL CORPORATION, a corporation, Plaintiff-Appellee, v. LOCAL UNION NO. 1392 OF UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants. ROBERTS AND SCHAEFER COMPANY, INC., a corporation, Plaintiff-Appellee, v. LOCAL NO. 9111, UNITED MINE WORKERS et al., Defendants-Appellants.
    Nos. 7-2 to 7-5.
    Temporary Emergency Court of Appeals.
    Feb. 1, 1973.
    Certiorari Denied June 18, 1973.
    See 93 S.Ct. 3008.

      Duncan B. Cooper, III, Peoria, Ill. (Willard P. Owens, Washington, D. C., and Heyl, Royster Voelker & Allen, Peoria, Ill., were with him on the brief), for appellants.

      Paul S. Kuelthau, St. Louis, Mo. (Moller, Talent & Kuelthau, St. Louis, Mo., were with him on the brief in No. 7-2 and Warren W. Browning, Browning & Browning, Chicago, Ill., and Moll-er, Talent & Kuelthau, St. Louis, Mo,., were with him on the brief in No. 7-5), for appellees in Nos. 7-2 and 7-5.
    Roger Edgar, St. Louis, Mo. (Veryl L. Riddle and Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., were with him on the brief in No. 7-3 and Dennis C. Donnelly, S. Richard Heymann and Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., were with him on the brief in No. 7-4) for appellees in Nos. 7-3 and 7-4.
    John N. Hanson, Washington, D. C. (Harlington Wood, Jr., William E. Nelson, Stanley D. Rose, and Edward A. Lenz, Washington, D. C., were with him on the brief), for the United States, amicus curiae.
    Before VAN OOSTERHOUT, ESTES, and HASTINGS, Judges.
   ESTES, Judge.

These are appeals from four judgments granting preliminary injunctions against the appellant local labor unions and officers of certain of these locals for violating Pay Board Reg. § 201.17 and for violating the arbitration provisions of collective bargaining agreements between the appellants and appellees by striking to force the appellant construction companies to pay a wage increase disapproved by the Pay Board.

On January 14, 1972, a representative of appellees, McGuire Shaft and Tunnel Corporation (McGuire) and Roberts and Schaefer Company, Inc. (Roberts),'entered into a collective bargaining agreement with the International Union, United Mine Workers of America on behalf of the construction workers employed by the coal mine construction companies and coal slope and shaft sinking companies signatory thereto. The agreement provided for wage increases in excess of 18 (about 18.7) per cent. The agreement was submitted to the Pay Board for approval oh January 24, 1972. On May 2, 1972, the Pay Board authorized only a 9.54 per cent wage increase. A petition for reconsideration was filed, but on August 1, 1972, the Pay Board reaffirmed its prior decision allowing only '9.54 per cent wage increase.

On August 14, 1972, the construction workers employed by Roberts stopped working at the Orient Number 3 Mine (Local 9111) of Freeman Coal Company and the Randolph preparation plant of Peabody Coal Company (Local 1824) to protest the Pay Board’s decision and to force Roberts to pay the unapproved increase. The construction workers employed by McGuire (Local 1781) stopped working on August 18 for the same reasons. The construction worker members of Local 9111 also picketed several coal mines throughout Illinois in an attempt to enlist the aid of other locals in forcing the construction firms to pay the disapproved wage increases. Among these mines were three operated by appellee Old Ben Coal Corp. (Old Ben) and two operated by appellee Southwestern Illinois Coal Corporation (Southwestern). At the two Southwestern mines, Local 9111 pickets were joined by members of Locals 9721 and 1825. The miners employed by both Old Ben (Locals 1124, 1345 and 1487) and Southwestern (Locals 1392 and 7333) refused to cross the picket lines.

The appellees each sought relief in the district court by means of a temporary restraining order and preliminary and permanent injunctions against the involved local unions and the officers of certain of these locals. Each appellee company sought this injunctive relief upon the authority of § 210(a) of the Economic Stabilization Act of 1970, as amended, 85 Stat. 743, Dec. 22, 1971. McGuire, Roberts, and Southwestern also claimed a second basis for the requested injunctive relief. They contend that under the authority of Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the district court could enjoin the work stoppages as violations of the grievance arbitration obligations of the collective bargaining agreements, despite the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. The district court issued the requested temporary restraining orders and preliminary injunctions in all four cases, finding authority to do so in both the Economic Stabilization Act and (except in the case brought by Old Ben) the collective bargaining agreements.

The defendants appeal. Finding as we do that these injunctions were authorized by the Economic Stabilization Act of 1970, as amended, we find it unnecessary to reach the Boys Markets issue.

The Economic Stabilization Act of 1970 (P.L. 91-379, 84 Stat. 799, Aug. 15, 1970), as amended (P.L. 92-210, 85 Stat. 743, Dec. 22, 1971), authorized the president to issue such orders and regulations as he deemed appropriate to stabilize wages and salaries at levels not less than those prevailing on May 25, 1970. Section 1(a) of Executive Order 11640, issued January 27, 1972, provides that “. . . no person shall, directly or indirectly, pay or agree to pay, in any transaction, wages or salaries in any form, or to use any means to obtain payment of wages and salaries in any form, higher than those permitted hereunder, whether by retroactive increases or otherwise.”

Pay Board Reg. § 201.10 established 5.5 per cent as the standard maximum permissible annual wage increase. Higher increases must either meet specific exceptions provided in other Pay Board Regulations or be approved by a decision of the Pay Board. Since the Pay Board approved only a 9.54 per cent wage increase, an increase higher than that would be unlawful. Pay Board Reg. § 201.17 declared it

“a violation of the Pay Board regulations, subject to the sanctions, fines, penalties and other relief provided in the Act, for any person to:
(c) Induce, solicit, encourage, force, or require, or attempt to induce, solicit, encourage, force or require, any other person to pay or to receive any portion of a wage and salary increase not authorized by such regulations or Pay Board decision; or
(d) Fail or refuse to comply with an order or decision of the Pay Board or to induce, solicit, encourage, force or require any other person to fail or refuse to comply with an order or decision of the Pay Board.
“Notwithstanding paragraph (c) of this section, it shall not be a violation to bargain for, request, contract for or agree to (as contrasted with paying or receiving) a wage and salary increase in excess of the maximum permissible annual aggregate wage and salary increase. The preceding sentence shall not apply to those situations where the Board has denied an appeal from a determination by the Internal Revenue Service, or rendered a decision on a pay challenge or request for an exception.”

The union work stoppages and picket lines were an effort to force, through both direct and indirect pressures, the construction companies to pay an unlawful wage increase. Such actions are violations of Executive Order 11640 and the Pay Board regulations.

The appellants contend that the Economic Stabilization Act of 1970, as amended, does not provide the right for private parties to obtain injunctions against violations of the act and the orders and regulations promulgated thereunder.

Section 210(a) of the act provides:

“Any person suffering legal wrong because of any act or practice arising out of this title, or any order or regulation issued pursuant thereto, may bring an action in a district court of the United States, without regard to the amount in controversy, for appropriate relief, including an action for a declaratory judgment, writ of injunction (subject to the'limitations of section 211), and/or damages.’.’

This section clearly gives parties the right to obtain injunctive relief for harm suffered from violations of the act and implementing orders and regulations, subject only to the restrictions upon the district court’s injunctive power provided in § 211 of the Act. The restrictions in § 211 are directed at limiting the power of the judiciary to impede the enforcement, operation, or execution of the Economic Stabilization Program. Since the cases sub judice are not concerned with enjoining the implementation of the stabilization program, but rather with enjoining violations thereof, the provisions of § 211 are inapplicable.

Since the statute is clearly written, and the “injunction” issued in these cases was “appropriate relief” specifically provided in § 210(a), it is unnecessary to look to the legislative history to ascertain the intent of Congress; however, the rather sketchy legislative history on this subject supports our interpretation. The bulk of the legislative history which concerns injunctions relates to § 211 and the Congress’s and the Administration’s concern with the “avoidance of any breaks or stays in the operation of the Stabilization Program.” The Administration’s proposed amendments to the Economic Stabilization Act of 1970, considered concurrently by both the House and the Senate, contained a section on judicial review which was subsequently revised by Congress and enacted as the present § 211. While there was no provision in the Administration’s proposed amendments to the act corresponding to the present § 210, the hearings before the Senate Committee on Banking, Housing and Urban Affairs reflect that concern was expressed by a senator that the Administration’s proposal did not provide “an individual, aggrieved by a violation, sp right to go to court and seek injunctive relief or damages.” The administration representative replied that there was an avenue for collecting damages. Subsequent to these hearings, this Senate Committee wrote § 210(a) in the identical language which was finally enacted as § 210(a) of the act, as amended.

Furthermore, the House version of the amendment contained a similar § 210(a) provision; however, that provision provided that the appropriate relief an individual could obtain included “an action for a declaratory judgment, and/or damages.” Even though neither the Administration proposal nor the House Bill provided the individual with the right to obtain injunctive relief, they each provided severe limitations on the power of the courts to enjoin the enforcement, operation and execution of the stabilization program. Clearly, the limitations on the federal courts’ authority to enjoin agencies of the government in the execution of the act, orders, and regulations thereunder were not considered synonymous with the right of an individual injured by violations of the program to enjoin those violations.

Having determined that a private party is entitled to obtain an injunction against violation of the Economic Stabilization Program, we face the issue of whether the anti-injunction provisions of the Norris-LaGuardia Act prohibit the granting of such an injunction against a labor union. There is nothing in either the Economic Stabilization Act or its legislative history to indicate any distinction between suits initiated by a private party under § 210(a) or by the Attorney General under the provisions of § 209 in so far as the applicability of the Norris-LaGuardia Act is concerned. On the contrary, it was clearly indicated that for the Economic Stabilization Program to work, it would be necessary for government enforcement to be supplemented by voluntary private efforts.

Section 209 provides that the district court may “issue mandatory injunctions commanding any person to comply with any . . . order or regulation” under the act. As stated by Representative Ryan of New York in presenting to the House the amendments as agreed upon by the Conference Committee for final passage of the bill, “Injunctive relief is . available to any person authorized by the President to exercise authority under this act to prevent any person or organization from violating this act.” The significance of this legislation is expressed in § 202 of the act:

“It is hereby determined that in order to stabilize the economy, reduce inflation, minimize unemployment, improve the Nation’s competitive position in world trade, and protect the purchasing power of the dollar, it is necessary to stabilize prices . wages [and] salaries. . . . The adjustments necessary to carry out this program require prompt judgments and actions by the executive branch of the Government.”

It is inconceivable that Congress would announce the national importance of stabilizing wages and then exempt labor unions from the principal means of enforcement, an injunction.

In light of the importance of the Economic Stabilization Program to economic welfare of the United States, the Norris-LaGuardia Act must be interpreted to accommodate the overriding Congressional intent expressed in the Economic Stabilization Act. Such accommodations have been made in the past when the provisions of the Norris-LaGuardia Act conflicted with other specific intentions of Congress.

Furthermore, the Norris-LaGuardia Act was designed primarily to protect working men in the exercise of organized economic power, which is vital to collective bargaining. Enforcement of the Economic Stabilization Act by injunctions will not detract from collective bargaining.

In cases No. 7-3 and 7-5, the appellants argue that the strikes and picketing were spontaneous actions on the part of individual members of the local unions and that the locals and their officers cannot be held responsible. The evidence is that the construction workers as a group struck and formed picket lines which the miners refused to cross. At subsequent meetings of the members of the various locals involved, the members voted to remain out. Although some officers of the locals made verbal attempts to get the members back to work, they participated in the strike themselves. The evidence supports the trial court’s finding that these activities were the activities of the local unions in an effort to force the construction companies to pay wages in violation of the Economic Stabilization Act and implementing orders and regulations.

The issuance of a preliminary injunction is a matter committed to the sound discretion of the trial court and can be overturned by an appellate court only where it has been a clear abuse of discretion. The proper standard for review has been thus stated by the D.C. Circuit in Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111, 1116, as follows:

“The standards which should guide the decision to grant a preliminary injunction have been often stated. The movant must show a substantial likelihood of success on the merits, and that irreparable harm would flow from the denial of an injunction. In addition, the trial judge must consider the inconvenience that an injunction would cause the opposing party, and must weigh the public interest as well.”

See Pauls v. Secretary of Air Force, 457 F.2d 294, 298 (1 Cir. 1972); Unicon Management Corp. v. Koppers Co., 366 F.2d 199 (2 Cir. 1966).

We agree with such standard. When such standard is applied to the facts of these cases, it is clearly established that the trial court did not abuse its discretion in granting the preliminary injunction in each of these cases.

Appellants in cases No. 7-2 and 7-5 further contend that the preliminary injunctions issued by the district court were overbroad. We agree. As indicated in Boys Markets and Old Ben Coal Corp. v. Local Union No. 1487 of United Mine Workers of America, 457 F.2d 162 (7 Cir. 1972), a cautious approach is required when enjoining labor unions. These injunctions should be limited to restraining the defendants and all persons acting in concert with them from engaging in a strike, picketing, inducing any individual or members of any other organization to strike and picket, or in any other manner inducing, soliciting, encouraging, forcing or requiring or attempting to induce, solicit, encourage, force or require the plaintiffs to pay any portion of a wage increase not authorized by the Economic Stabilization Act of 1970, as amended, and orders and regulations implementing it. As so modified, the judgments are affirmed.

      . Issued on Nov. 13, 1971, amended Dec. 27, 1971 (36 F.R. 25427); reissued on Nov. 23, 1972, as § 201.10 without material change (37 F.R. 24960).

      . 37 F.R. 4899, March 7, 1972; the substance of § 201.17 was reissued on November 23, 1972, as § 201.41 (37 F.R. 24960).

      . § 211. Judicial review
      (a) The district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy ....
      (d) (1) Subject to paragraph (2), no regulation of any agency exercising authority under this title shall be enjoined or set aside, in whole or in part, unless a final judgment determines that the issuance of such regulation was in '-excess of the agency’s authority, was arbitrary or capricious, or was otherwise unlawful under the criteria set forth in section 706 (2) of title 5, United States Code, and 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.
      (2) A district court of the United States or the Temporary Emergency Court of Appeals may enjoin temporarily or permanently the application of a particular regulation or order issued under this title to a person who is a party to litigation before it. Appeals from interlocutory decisions by a district court of the United States under this paragraph may be taken in accordance with the provisions of section 1292(b) of title 28, United States Code; except that reference in such section to the courts of appeals shall be deemed to refer to the Temporary Emergency Court of Appeals.
      (e) (1) Except as provided in subsection (d) of this section, no interlocutory or permanent injunction restraining the enforcement, operation, or execution of. this title, or any regulation or order issued thereunder, shall be granted by any district court of the United States or judge thereof ....

      . Senate Comm, on Banking, Housing and Urban Affairs, S.Rep.No.92-507, 92d Cong.lst Sess. (1971), U.S.Code Congressional and Administrative News 2283 at 2292.

      . Hearings on H.R. 11309 before the House Comm, on Banking and Currency, 92d Cong., 1st Sess. at 305 (1971).

      . Hearings on S. 2712 before the Senate Comm, on Banking, Housing and Urban Affairs, 92d Cong.. 1st Sess. at 2 (1971).

      . Senator Stevenson, Hearings on S. 2712, supra, at 43 (emphasis added).

      . 117 Cong.Rec.H. 12259 (daily ed. Dec. 10, 1971).

      . § 209. Injunctions and other relief
      Whenever it appears to any person authorized by the President to exercise authority under this title that any individual or organization has engaged, is engaged, or is about to engage in any acts or practices constituting a violation of any order or regulation under this title, such person may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin such acts or practices, and upon a proper showing a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. Any such court may also issue mandatory injunctions commanding any person to comply with any such order or regulation. In addition to such injunctive relief, the court may also order restitution of moneys received in violation of any such order or regulation.

      . 117 Cong.Rec.H. 12532 (daily issue, Dec. 14, 1971) (emphasis added)

      . Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945); Virginia Railway Co. v. System Federation No. 40, Railway Employees Department of the A.F.L., 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949); Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Although this point had not been raised in previous cases before this court, the court has already upheld injunctions against labor unions violating the act and the regulations and orders promulgated thereunder. Local 117 of Amalgamated Meat Cutters and Butcher Workmen of North America v. United States, 468 F.2d 946 (Em.App.1972); United States v. International Brotherhood of Electrical Workers, Local No. 11, 475 F.2d 1204 (Em.App.1973).

      . In its brief as amicus curiae, the United States advances the proposition, which we do not find it necessary to decide, that the Norris-LaGuardia Act is not applicable here because the basic dispute does not come within the Act’s definition of a “labor dispute.” See 29 U.S.C. § 113(e). The Government contends that this is so because (1) the subject matter of the dispute being unlawful means that no valid “labor dispute” as to it can exist, and (2) the actual controversy being between a union and a regulatory agency, there is no labor dispute between the parties involved here.
      For the first point, the Government cites NLRB v. Indiana Desk Co., 149 F.2d 987 (7 Cir. 1945), and dictum in Order of R.R. Telegraphers v. Chicago & North Western Ry., 362 U.S. 330, 340, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960). We do not consider it necessary to decide this point.
      Khedivial Line, S.A.E. v. Seafarers’ International Union, 278 F.2d 49 (2 Cir. 1960), is cited for its holding that the Norris-LaGuardia Act prohibition against grant of injunctions in labor disputes does not extend to picketing directed against the policies of the [foreign] government of which the employer is a subject, as distinguished from picketing directed against activities of the employer. The union activity here does not seem to be exclusively in protest of the Pay Board action. The predominant intent, as found by the court below, is to force the employ - ers to take certain action unlawful under the Economic Stablization Act.


author: WISDOM, Circuit Judge:

text:
    In the Matter of Thomas W. Thompson, Debtor. Thomas W. THOMPSON, Appellant, v. FORD MOTOR CREDIT COMPANY, Appellee.
    No. 72-3553
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 4, 1973.

      L. Zack Dozier, Macon, Ga., for appellant.
    E. J. Harrell, Macon, Ga., for appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   WISDOM, Circuit Judge:

On December 8, 1971, Thomas W. Thompson filed a petition in federal district court under Chapter XIII of the Bankruptcy Act to pay his debts through a wage earner plan. After the court issued notice to creditors, Ford Motor Credit Company [Ford], a secured creditor to whom Thompson was indebted for payments owing on a 1970 Ford Mustang, filed a secured proof of claim rejecting the proposed plan. At the first meeting of creditors the plan was confirmed over Ford’s objection. The plan provided for payments to Ford of $22.90 per week, equivalent to the rate specified in the original sales contract, and enjoined Ford from foreclosing on the car. On July 6, 1972, Ford filed a petition to reclaim the car, alleging that Thompson had failed to make payments in the amount specified by the plan. After a hearing before the referee in bankruptcy, the referee denied Ford’s petition and also denied Ford’s oral motion to dismiss the plan. On Ford’s petition for review the district court reversed the referee’s decision and remanded to the referee with directions to grant the reclamation petition.' Thompson appeals from the district court’s decision. We reverse and remand the case with instructions to the referee to amend the plan.

After confirmation of a Chapter XIII plan, a bankruptcy court may in appropriate circumstances permit a secured creditor who has rejected the plan to reclaim its property from a defaulting debtor. Cheetham v. Universal C.I.T. Credit Corp., 1 Cir. 1968, 390 F.2d 234; In re Clevenger, 7 Cir. 1960, 282 F.2d 756, 757; In re Copes, 1962, D. Kan., 206 F.Supp. 329; In re Duncan, 1940, E.D.Va., 33 F.Supp. 997; Comment, Relief for the Wage-Earning Debtor: Chapter XIII, or Private Debt Adjustment?, 55 Nw.U.L.Rev. 372, 376 (1960). The exercise of the power to restrain or permit foreclosure is within the sound discretion of the referee. Hallenbeck v. Penn Mutual Life Ins. Co., 4 Cir. 1963, 323 F.2d 566, 573-574. The referee may properly deny reclamation in the following circumstances. (1) General equitable considerations, including the debtor’s good faith and ability to pay, should favor restraining foreclosure. (2) The injunction agáinst foreclosure must be necessary to preserve the debtor’s estate or carry out the Chapter XIII plan. (3) The injunction must not impair the security of the lien. (4) The owner of the secured indebtedness must not be required to accept less than the full periodic payments specified in the contract. Hallenbeck v. Penn Mutual Life Ins. Co., supra, 323 F.2d at 572; Cheetham v. Universal C.I.T. Credit Corp., supra, 390 F.2d at 238.

Equitable considerations strongly suggest that foreclosure would be improper in this case. Thompson fell behind in payments not because of any lack of good faith on his part, but because of circumstances beyond his control. His default appears to have been due to an injury which prevented him from working and to his being temporarily put on a part-time schedule by his employer. During the period of his incapacity Thompson regularly submitted his disability cheek to the trustee. At present Thompson is still employed, and earns enough to cover payments under the plan.

Foreclosure would seriously threaten Thompson’s ability to make payments under the Chapter XIII plan. Loss of the car would endanger his employment. His job requires him to be at work at 6:00 A. M., and the car is his only means for getting to work at that hour. See In re Rutledge, 1967, E.D.Ark., 277 F.Supp. 933, 936. Thompson’s other creditors have a substantial stake in the success of the Chapter XIII plan. Though Ford is Thompson’s largest single creditor, his total debts to his other secured and unsecured creditors exceed his debt to Ford. While foreclosure would make Ford whole, it would effectively destroy any hope that Thompson might be able to repay these other creditors. Cf. In re Garrett, 1962, N.D.Ala., 203 F.Supp. 459, 461.

Thompson’s default has not been so substantial as to impair Ford’s security. Ford alleged in its reclamation petition that it had been paid only $82.44 under the plan, instead of the $517 which it should have received. Shortly after the petition was filed, however, Ford was paid an additional $91.60. At the time of the hearing, then, Ford had received $174.04. This sum roughly covered the depreciation on the car, approximately $200 since confirmation of the plan. We do not regard it as of controlling importance that part of this payment was made after Ford filed its petition. When the referee considered this case Ford’s economic position was fundamentally no worse than when the plan was confirmed.

Ford is not required by the plan to surrender any essential rights under its contract. The plan contemplates payment at the contract rate. At worst Thompson’s default will work some delay in the time required for full payment. In light of all the circumstances in this case, including Thompson’s good faith, the interests of the other creditors, and the fact that Ford’s security has not been seriously impaired, we do not view this potential delay as substantial enough to require immediate foreclosure. See In re Clevenger, 7 Cir. 1960, 282 F.2d 756, 757; In re Pizzolato, 1967, W.D.Ark., 268 F.Supp. 353, 356.

We do not suggest that Thompson is free to make reduced payments for the indefinite future. Ford should be entitled to reclaim if Thompson continues to fall behind in payments without substantial justification, and if the economic injury to Ford from the delay in payment or impairment of its security grows greater in comparison to the interest of the other creditors in continuation of the plan. To ensure that Ford will receive payment within a reasonable time, we remand the case with instructions to the referee to amend the plan by specifying a date for bringing delinquent payments current. But on the record before us we hold that the referee was within his sound discretion in refusing reclamation.

The judgment of the district court is reversed, and the case is remanded with instructions to the referee to amend the plan in accordance with this opinion.

      . It is less clear whether a secured creditor who accepts a Chapter XIII plan may seek reclamation in event of default by the debtor after confirmation. See Copenhaver, Chapter XIII, Wage Earner’s Plan, in Proceedings of Fourth Seminar for Referees in Bankruptcy 279, 299 (1967); 10 Collier on Bankruptcy ¶ 29.03, at 332 (14th ed. 1970); 1A Collier Bankruptcy Manual ¶ XIII-9.03 (1970). That question is not at issue in this case, since Ford rejected the plan.

      . See also In re Pizzolato, 1967, W.D.Ark., 268 F.Supp. 353; In re Wilder, 1963, M.D.Ga., 225 F.Supp. 67, 69.

      . Under § 661 of the Bankruptcy Act a debtor may be discharged after three years even if payments under the plan are not complete, if the failure to complete payment is due to circumstances for which the debtor cannot be justly held accountable. 11 U.S.C: § 1061. The requisite circumstances include loss of employment because of illness or other reasons beyond the debtor’s control. 10 Collier on Bankruptcy ¶ 29.11, at 355 (14th ed. 1970) ; Comment, Belief for the Wage-Earning Debtor: Chapter XIII, or Private Debt Adjustment?, 55 Nw.U.L.Rev. 372, 375 n. 26 (1960).

      . Ford asserts in its brief that Thompson has fallen further behind in his payments since the filing of Ford’s petition. There is nothing in the record on this appeal to substantiate this assertion, however. And it appfears from the record that Thompson has been hospitalized during part of this time.


author: PER CURIAM.

text:
    OAK CONSTRUCTION COMPANY, Plaintiff-Appellant, v. HURON CEMENT COMPANY, Defendant-Appellee.
    No. 72-1853.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 7, 1973.
    Decided March 22, 1973.

      Richard H. Scholl, Detroit, Mich., Schaden & Peplowski, Detroit, Mich., on brief, for plaintiff-appellant.
    George B. Martin, Detroit, Mich., Dickinson, Wright, McKean & Cudlip, Detroit, Mich., on brief, for defendantappellee.
    Before EDWARDS, CELEBREZZE, and McCREE, Circuit Judges.
   PER CURIAM.

This is an appeal from the grant of summary judgment in favor of the defendant cement company in a Robinson-Patman action, 15 U.S.C. § 13(a), (d), and (e), to recover treble damages for injuries resulting from unlawful price discrimination.

The record reveals that a counterclaim for non-payment of a contract debt was filed by defendant but has not yet been adjudicated. Since all the claims before the court were not decided in the grant of summary judgment, that order is interlocutory. Illinois Tool Works, Inc. v. Brunsing, 378 F.2d 234 (9th Cir. 1967); 6 J. Moore, Federal Practice ¶ 54.35[1], at 582 (2d ed. 1948).

Federal courts of appeal do not have jurisdiction of interlocutory orders under 28 U.S.C. § 1291, David v. District of Columbia, 88 U.S.App.D.C. 92, 187 F.2d 204 (D.C.Cir.1950), although in an action involving multiple claims or parties the district court may enter a final, appealable judgment with respect to less than all the claims or parties if it certifies that there is no just reason for delay and expressly directs the entry of judgment. Fed.R.Civ.P. 54(b). No such certification or direction was entered in this case. Accordingly, we lack jurisdiction to entertain this appeal.

This lack of jurisdiction cannot be cured now by a belated Rule 54(b) certification by the District Court. Williams v. Bernhardt Bros. Tugboat Service, Inc., 357 F.2d 883 (7th Cir. 1966). Our jurisdiction attaches, if at all, when notice of appeal is filed in the district court. See Fed.R.App.P. 3(a). If all the jurisdictional prerequisites have not been satisfied at that point, we have no choice but to dismiss the action and “indicate to the parties that if the trial court enters a new judgment and accompanies it with a Rule 54(b) certificate, the second appeal will be heard on the record and briefs prepared for the first appeal, as supplemented by the new judgment and certificate.” 3 Barron & Holtzoff, Federal Practice & Procedure § 1193, at 26 (Wright ed. 1958).

The appeal is dismissed. No costs.