author: COWEN, Chief Judge.

text:
    Mrs. Bella M. BAILEY v. The UNITED STATES.
    No. 243-73.
    United States Court of Claims.
    Feb. 19, 1975.

      Robert H. Turtle, Washington, D. C., atty. of record, for plaintiff. James M. McHale, Washington, D. C., of counsel.
    Stephen Schachman, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before CO WEN, Chief Judge, and SKELTON and BENNETT, Judges.
   COWEN, Chief Judge.

Mrs. Bella M. Bailey brings this action as personal representative of her late husband, Lieutenant Colonel Frank W. Bailey (Ret.). Plaintiff alleges that her husband, because of the erroneous decision of" defendant, was denied the full measure of his Civil Service retirement annuity. Plaintiff directly calls into question the interpretation of Title 5, Section 8332 of the United States Code as formulated by the Board of Appeals and Review in its decision in this matter on May 25, 1973. As a result, she sues to recover an amount of money representing the difference between the past annuity payments her husband received and the amount of payments to which she claims he was entitled. She asks further that we order the Civil Service Commission to revise the retirement records of her late husband to reflect her interpretation of 5 U.S.C. § 8332. For reasons discussed below, we believe the Board of Appeals and Review was correct in its interpretation of the relevant statutory provisions and, accordingly, we have concluded that plaintiff should not recover.

The case is before us on cross motions for summary judgment, and there is no dispute as to material facts. Plaintiff’s husband commenced a long career of Federal service on March 2, 1931, as a civilian employee of the War Department. After serving as an inspector, boatman, and student engineer, Col. Bailey rose through the ranks until he became an Associate Engineer in 1942. In August 1942, after more than 11 years in the Federal Government as a civilian employee and during ■ the height of World War II, Col. Bailey became an officer in the active Army, serving until his discharge in 1951. After leaving the military, plaintiff’s husband was again employed by the Government in a civilian position, this time as a GS-11 General Engineer with the Department of the Army. However, this stint as a civilian employee lasted only 6 months; in July 1951, Col. Bailey took leave from his Civil Service position to enter the Air Force during the Korean Conflict. His military career continued for 12y2 years, until he retired from the Air Force on January 31, 1964. During his lifetime, Col. Bailey received a retirement annuity from the Air Force, based on the 21 years he served in the military.

Col. Bailey’s retirement from the military is not the final chapter of this story. Seven months thereafter he again became a civilian employee, as a GS-11 General Engineer with the District of Columbia. His retirement from the civilian service of the Federal Government occurred on September 30, 1971, as a GS-12-05 General Engineer. After this retirement, Col. Bailey began receiving, in addition to his military annuity, a retirement annuity for his civilian employment in the Federal Government. Although he originally received credit for certain periods of his active military duty in the computation of his Civil Service retirement pay, this computation was only provisional. Indeed, credit for his military service was allowed only because of Col. Bailey’s incorrect statement as to the reason for his retirement; he originally stated that he had been retired under Chapter 67, Title 10 of the United States Code. When it was determined that, in fact, Col. Bailey’s retirement from military service was due to his age (63) and the length of his military service and had been accomplished pursuant to 10 U.S.C. § 8911, the credit was denied by the Bureau of Retirement Insurance and Occupational Health (BRIOH). This decision by BRIOH had the effect of reducing Col. Bailey’s Civil Service retirement annuity from the provisional amount of $840 per month to $431 per month.

Plaintiff’s husband immediately protested the denial of credit for his military service; he claimed the ruling was the result of a “misapplication of the statute, 5 U.S.C. § 8332.” Col. Bailey’s primary focus in this protest was on paragraphs (b) and (g) of section 8332, which provide:

(b) The service of an employee shall be credited from the date of original employment to the date of separation on which title to annuity is based in the civilian service of the Government.
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(g) An employee who during the period of a war, or of a national emergency as proclaimed by the President or declared by Congress, leaves his position to enter the military service is deemed, for the purpose of this sub-chapter, as not separated from his civilian position because of that military service, unless he applies for and receives a lump-sum credit under this subchapter. However, the employee is deemed as not retaining his civilian position after December 31, 1956, or after the expiration of 5 years of that military service, whichever is later.

Simply stated, it was Col. Bailey’s position that these two paragraphs unqualifiedly allow credit for military service for those in his situation and that he was entitled to credit 13 years, 11 months of his military service in the computation of his Civil Service retirement annuity.

However, Mr. Isaac Joseph, Chief of Section, BRIOH, was not persuaded by Col. Bailey’s argument and denied his request for reversal of the original BRIOH position. In his letter dated May 11, 1972, to Col. Bailey’s attorney, Mr. Joseph stated:

[Section 8332] cannot be construed to mean that all civilian employees who leave their positions to enter the Armed Forces are entitled to civilian retirement credit for such periods of service in the Armed Forces regardless of the fact that they may receive retired pay based on the military service.

The BRIOH placed special emphasis, not on paragraphs (b) and (g) of section 8332, but on paragraph (c), which provides:

(c) Except as provided by subsection (d) of this section, an employee or Member shall be allowed credit for periods of military service before the date of the separation on which title to annuity is based. However, if an employee or Member is awarded retired pay on account of military service, his military service may not be credited unless the retired pay is awarded—
(1) on account of a service-connected disability—
(A) incurred in combat with an enemy of the United States; or
(B) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 301 of title 38; or
(2) under chapter 67 of title 10.

It was the Government’s position, as it is today, that no credit should be allowed Col. Bailey, since his military service did not come within either of the specific

exceptions to the paragraph (c) prohibition against “double” credit for periods of military service.

This initial affirmance of the original BRIOH decision regarding Col. Bailey’s civilian annuity was appealed first to the Legislative and Policy Division of BRIOH, where Solomon Pepperman, Chief of the Division, concluded that:

[ujnless and until Colonel Bailey elects to waive his retired pay, 5 U.S.C. 8332(c) bars us from allowing him credit in the computation of his annuity benefits for his periods of military service from August 2, 1942 to June 16, 1950, and from July 19, 1951 to January 31, 1964.

Following this final decision by BRIOH, Col. Bailey appealed to the Board of Appeals and Review (BAR). The parties agree that during its consideration of the appeal, BAR received a policy memorandum regarding the correct interpretation of section 8332 from the Legislative and Policy Division of BRIOH. This correspondence, as well as Col. Bailey’s personnel file, was transmitted to Col. Bailey’s attorney. However, two items attached to the original memorandum were not sent to plaintiff’s husband or to his attorney; these enclosures were the prior Civil Service decisions in Charles S. Lawrenson (CSF 300 243) and William H. Looney (CSF 858 784). In denying Col. Bailey access to these opinions, William P. Berzak, Chairman of the BAR, wrote on May 3, 1973, that:

the Board adjudicates each case on the basis of the record in that case and is not bound by previous decisions on other appeals.
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5 CFR 831.106 provides that the Commission shall not disclose information from the files, records, reports, and other papers and documents pertaining to a claim filed with the Commission, whether potential, pending, or adjudicated. Therefore, the files of other cases appealed to the Board are not for release.

No further action was taken by Col. Bailey regarding the information he requested but did not receive, and on May 25, 1973, the BAR denied Col. Bailey’s appeal on the merits of his claim. In its decision, the BAR found that paragraph (g) of section 8332 was not intended to cover situations such as Col. Bailey’s, and that paragraph (c), which was determined to be controlling, “plainly state[d] that if retired pay is awarded on account of military service, with the exceptions noted, military service may not be credited toward Civil Service Retirement.”

I

Mrs. Bailey’s action presents the court with an issue of first impression: whether a person retired from the military because of age and length of service, who is receiving a military retirement annuity based on all of his military service, is entitled to credit any portion of that military service in the computation of his Civil Service retirement annuity. More simply stated, our question is whether a Federal employee can receive double credit for his military service for reasons other than those specifically listed in 5 U.S.C. § 8332(c)(1) and (2). The cases cited to us by the parties are clearly not precisely on the point presented in this case; instead, they deal with whether an employee can count his years of military service, which are not used to determine his military retirement pay, to increase the period of his service for the computation of his Civil Service retirement annuity. For example, in Prentiss v. United States, 105 F.Supp. 989, 123 Ct.Cl. 225 (1952), the plaintiff served approximately 32 years with the military but received a military retirement annuity based on only 30 years of his military service. The court allowed the plaintiff to use the period of time spent in the military in excess of 30 years to supplement his 7V2 years of civilian employment in the computation of his Civil Service retirement pay. See Bond v. United States, 135 F.Supp. 433, 133 Ct.Cl. 204 (1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1031, 100 L.Ed. 1491 (1956). This holding was later extended somewhat in Hobson v. United States, 151 Ct.Cl. 201 (1960), when the court determined that such “excess” military service need not be in excess of 30 years but could be any time spent in the military which is not utilized in the computation of the military annuity. Thus, it is clear that this line of decisions neither condones nor forbids the type of dual credit Mrs. Bailey is presently seeking.

II

Although she relies mainly on her interpretation of the applicable statute, plaintiff also challenges the validity of the administrative decision on two grounds which are unrelated to its correctness as a matter of law. As previously stated, the Director of BRIOH sent the Chairman of the BAR a memorandum which recited the provisions of 5 U.S.C. § 8332(c), discussed some of the legislative history of that statute, and referred to two previous decisions by the Civil Service Commission. Plaintiff’s attorney was furnished a copy of the memorandum before the appeal was decided, but his request for copies of the decisions in the two cases referred to was denied. Plaintiff maintains: (1) the memorandum constituted an ex parte communication which nullifies the decision of the BAR; (2) the Freedom of Information Act voids the BAR decision, because it relied on two previous decisions which were not made available to the public, and (3) the defendant’s failure to furnish plaintiff’s attorney with copies of the two decisions mentioned was a denial of due process, which renders the decision null and void. Plaintiff’s purpose in advancing these contentions was clarified by plaintiff’s attorney at oral argument when he stated:

[W]e' raised those two basic arguments because we believe the Civil Service proceedings held in this case, and for that matter, in all cases, do not comply with due process. We don’t believe that the record established in those cases or the decision-making process should be given any weight by this court.

We need not and do not rule on the merits of these contentions. Any denial of due process or other error by the Civil Service Commission is of no consequence in the present posture of this case. The facts are not in dispute, and we are not concerned here with a challenge to any administrative finding of fact. On the contrary, the BAR ruling was a decision on a question of law which is not binding on the court. Therefore, if plaintiff were correct in her interpretation of section 8332, we could render a decision in her favor and thereby remedy any lack of due process or other defects in the administrative proceedings.

Ill

As plaintiff’s counsel conceded at oral argument, “this is clearly a case of statutory construction, pure and simple.” The proper starting point for interpreting section 8332 is, of course, the specific language found therein, since “a clear and unambiguous statute speaks for itself.” Selman v. United States, 498 F.2d 1354, 1356, 204 Ct.Cl. 675, 680 (1974). However, the language of paragraphs (b) and (g) of section 8332, taken together, seemingly contradicts the general prohibition against “dual credit” clearly enunciated in paragraph (c) of the same statute. It is our duty to attempt to harmonize these various statutory provisions, and in order to accomplish this task, we must determine the intended scope of the paragraphs upon which plaintiff relies.

To decide whether Col. Bailey’s situation was intended by Congress to be governed by the language of paragraph (g), we must delve into the purpose of that provision and the circumstances under which the language was employed. American Export Isbrandtsen Lines, Inc. v. United States, 499 F.2d 552, 579, 204 Ct.Cl. 424, 469 (1974); Sea-Land Service, Inc. v. United States, 493 F.2d 1357, 1361, 204 Ct.Cl. 57, 71, cert. denied, 419 U.S. 940, 95 S.Ct. 69, 42 L.Ed.2d 67 (1974); see Puerto Rico v. Shell Co. (P.R.) Ltd., 302 U.S. 253, 258, 58 S.Ct. 167, 82 L.Ed. 235 (1937). A statute can never be divorced from the circumstances existing at the time it was passed or from the evil which Congress sought to correct and prevent. United States v. Wise, 370 U.S. 405, 412-14, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962); CAB v. Delta Air Lines, Inc., 367 U.S. 316, 323-24, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961); United States v. Champlin Refining Co., 341 U.S. 290, 297, 71 S.Ct. 715, 95 L.Ed. 949 (1951); Akins v. United States, 439 F.2d 175, 177, 194 Ct.Cl. 477, 483, (1971). In their arguments before the court, both parties have relied primarily on the available legislative history of paragraph (g), and we also turn to this source in interpreting the statutory provisions at issue.

Section (g) was originally enacted November 9, 1945, by the 79th Congress directly to counteract a Comptroller General’s decision handed down in January of that year. See 24 Comp.Gen. 573 (1945). This opinion (No. B — 46952) over-

turned existing Civil Service Commission policy and determined that a Government employee-soldier could not be continued in a civilian status for retirement purposes while on active duty; from this determination it followed that no right to any civilian retirement benefit or service credit toward retirement longevity could attach until the employee returned to his civilian position. See BAR Decision, at 3; Nordstrom v. United States, 342 F.2d 55, 61, 169 Ct.Cl. 632, 642 (1965). The Civil Service Commission disagreed with the Comptroller General on this subject and proposed the bill (H.R. 3256), which later became the 1945 Act, Public Law 79-216. What troubled the Commission was the differentiation made as a practical result of the Comptroller General’s decision between the treatment of employees furloughed at the commencement of World War II from their civilian Government positions to work in private industry and those who entered the military. As was stated in a letter dated May 15, 1945, to Representative Sam Rayburn from Harry B. Mitchell, President, United States Civil Service Commission:

Under the [Comptroller General’s] decision such persons who become disabled in employment in private industry would be entitled to such compensation as may be allowed by the employer or State laws as well as disability annuity under the civil-service retirement law; whereas, a furloughed employee disabled in combat with the enemy would be deprived of any retirement annuity by reason of his civil service with the possible exception of some future annuity benefit to which he may have had a vested right at the time of entrance in the military service.

Thus, it is clear that the concern of the Commission was not a general one for all personnel leaving civilian employment to serve in the military, but rather was directed specifically at those who, because of combat-related wounds, were unable to return after the war to their previous civilian positions.

The Committee Reports accompanying H.R. 3256 demonstrate that Congress passed this legislation with only a small class of employee-soldiers in mind. House Report No. 757 states in part that:

The purpose of this bill is to meet a decision of the Comptroller General ruling that it is not possible for a former employee who returns from the armed services with a physical disability and whose condition is such as to prevent his reemployment, to receive the benefits of the Retirement Act.

H.R.Rep. No. 757, 79th Cong., 1st Sess. 1 (1945). The Senate Report evidences a similar legislative purpose when it states:

The purpose of this bill is to permit the retirement of former employees of the Government who incur physical disability while serving in the armed forces, without requiring them to be restored to their civilian positions prior to retirement.

S.Rep. No. 564, 79th Cong., 1st Sess. 1 (1945).

Further evidence of the Congressional purpose and intended scope of this legislation may be found in the debate on this bill in the House of Representatives on June 25, 1945. Congressman Ram-speck, Chairman of the Civil Service Committee, spoke eloquently of the desire of the Committee when he said:

Mr. Speaker, the purpose of this bill is to cure a situation that has developed in a few cases where veterans have come back from service in the armed forces and have been unable to return to their positions.
Under the Retirement Act, in such cases they are not entitled to disability retirement; whereas if they could go to work for 1 day, they would be entitled to it.
The Civil Service Commission has recommended this bill. The committee has passed it unanimously, feeling that it is not right or fair to deprive these men who have suffered grave injury because of their service in the armed forces — to deprive them of their disability retirement rights simply because of the technicality that they cannot return to their former jobs for as much as 1 day. Some of the disabled cases are mental cases who could not be restored to their positions. If they came back with some other disability under which they could go back to work for even' as much as a day, they could get the disability retirement.
[The bill] deals only with the cases of men who are unable to go back to work. As I stated, cases have come to our attention of mental disability where they could not go back to work for even a minute * * *.

91 Cong.Rec. 6653 (1945) (remarks of Congressman Ramspeck). Congressman McCormack summed up the Congressional purpose in the following manner:

In other words, the purpose of this legislation is to say that a man who was working for the Federal Government and left that employment to enter the armed services, either the Army, Navy, Marines, or Coast Guard, was wounded and disabled while in the service to the point that he cannot go back to his former Federal job or any other Federal job, that such person will not be denied the benefits he would otherwise be entitled to under the Federal Employees Retirement Act.

91 Cong.Rec. 6654 (remarks of Congressman McCormack).

The original version of 5 U.S.C. § 8332(g) did not contain a provision limiting creditable military service to the later of either December 31, 1956, or 5 years after the expiration of military service. This limitation was added by the Federal Executive Pay Act of 1956, Public Law 84-854. Since this addition was only a minor portion of a long and complicated Act, which dealt with a wide range of material in the Federal personnel area, little was said about paragraph (g) in the available legislative history. In fact, the only reference to this paragraph is found in a letter from Phillip Young, Chairman, Civil Service Commission, to Congressman Tom Murray, Chairman of the House Committee on Post Office and Civil Service. Plaintiff argues that this correspondence demonstrates that the Commission had construed section 8332(g) as allowing all employees credit for military service in computing civil service annuities. While certain portions of Chairman Young’s letter are unclear, we certainly find nothing therein which is sufficient to contravene the clear Congressional purpose evidenced throughout the legislative history of the original enactment of paragraph (g). Although Chairman Young made no direct reference to the narrow purpose of this provision, he alluded to it indirectly when, in describing the proposed limitation on paragraph (g), he stated:

This provision would generally affect adversely only those persons who do not return to civilian duty, [emphasis supplied]

In summary, we hold that the legislative history of paragraph (g), taken as a whole, demonstrates clearly that this provision was enacted for the specific purpose of counteracting the ruling of the Comptroller General regarding civilian retirement rights of employee-soldiers. Furthermore, we conclude that paragraph (g) was meant to aid only those Federal employees who left their civilian jobs during times of national emergency to enter military service and became so disabled or otherwise incapacitated that they were unable to return to civilian Government service. Although we presume that Col. Bailey served his country with valor during World War II and the Korean Conflict, the simple fact is that he was able to return to civilian positions after both tours of duty. Therefore, his military service did not qualify him for the benefits intended by paragraph (g), and his entitlement to retirement annuity is governed by the clear language of paragraph (c).

IV

For the reasons stated, we find that the decision of the Board of Appeals and Review .was correct as a matter of law. Accordingly, we deny plaintiff’s motion for summary judgment, grant defendant’s cross motion for summary judgment, and dismiss plaintiff’s petition.

      . Having already exhausted his administrative remedy available at the Civil Service Commission, Col. Bailey himself brought this action before the court. However, before we could hear oral argument on his claim, he died on July 24, 1974. Our decision has been held in abeyance pending proper substitution of a party plaintiff under Rule 66(a). This substitution occurred on December 20, 1974, when Mrs. Bailey, as the authorized personal representative of her late husband’s estate, was named as plaintiff in this litigation.

      . It should be noted that the question of this litigation did not become moot by the death of Col. Bailey, especially since his widow’s benefits are calculated by reference to the amount of his annuity during life.

      . This calculation includes the entire 8 years, 6 months of active duty from August 1942 to February 1951, and the portion of his second “tour of duty” that occurred prior to December 31, 1956 (5 years, 5 months).

      . Since Col. Bailey never petitioned the Air Force Board for Correction of Military Records to change the character of his retirement, we must assume that he was indeed retired pursuant to 10 U.S.C. § 8911 as found by BRIOH. Furthermore, plaintiff now does not contend that her husband was retired as described in paragraph (c)(1) or (c)(2) of section 8332.

      . The plaintiff in Hobson, although serving for 25 years, 8 months in the military, received retired pay based on the active-duty pay of a person of his rank with 24-27 years of service. He argued successfully that his military annuity was actually based on 24 years of service and that 1 year, 8 months could be categorized as “excess,” pursuant to Prentiss. 151 Ct.Cl. at 202. Hobson specifically overruled that part of the decision in McLarren v. United States, 178 F.Supp. 478, 147 Ct.Cl. 497 (1959), which had held that only where there were over 30 years of service could there be “excess service.” 151 Ct.Cl. at 204.

      . See Montgomery Charter Serv. Inc. v. Washington Metropolitan Area Transit Comm’n, 117 U.S.App.D.C. 34, 325 F.2d 230 (1963). See also Maiatico v. United States, 112 U.S.App.D.C. 295, 302 F.2d 880, 886 (1962).

      . It should be noted that this conclusion is in line with what the court has determined to be the scope of paragraph (g) in the past, when it has been confronted with other issues in this area. See Nordstrom v. United States, 177 Ct.Cl. 818 (1966); Nordstrom v. United States, 342 F.2d 55, 169 Ct.Cl. 632 (1965).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    MEVA CORPORATION v. The UNITED STATES.
    No. 492-69.
    United States Court of Claims.
    Feb. 19, 1975.

      Stuart G. Oles, Seattle, Wash., attorney of record, for plaintiff. Allen, De-Garmo & Leedy, Seattle, Wash., of counsel.
    John A. McWhorter, Washington, D. C. , for the Associated General Contractors of America, amicus curiae. Harold I. Rosen and King & King, Chartered, Washington, D. C., of counsel.
    George M. Beasley, III, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant. David R. Schlee, Washington, D. C., of counsel.
    Before DAVIS, KASHIWA and KUN-ZIG, Judges.
   OPINION

PER CURIAM:

This case comes before the court on exceptions by the plaintiff and the defendant to the recommended decision, filed January 11, 1974, by Trial Judge Harry E. Wood pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel for the parties and the Amicus Curiae. Since the court agrees with the recommended decision of the trial judge, as supplemented by the court, and as hereinafter set forth, it hereby affirms and adopts the recommended decision, as supplemented, as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $600,-000.

OPINION OF TRIAL JUDGE

WOOD, Trial Judge:

In this contract action, plaintiff, a California corporation, contends that in the facts and circumstances of this cause defendant’s refusal after contract award to permit plaintiff either (1) to substitute another subcontractor for one listed by plaintiff in its bid as the subcontractor who would (should plaintiff be awarded the contract) perform clearing and footings work, or (2) to perform the clearing and footings work itself, constituted a breach of contract, and that defendant is accordingly liable to it for its resulting damages, alleged to amount to some $1,600,000.

Defendant’s position is that the Contracting Officer never rendered “a decision that was final as to the contractor’s right to substitute”; that, assuming arguendo the Contracting Officer did make “an arbitrary and final decision”, plaintiff’s claim for resulting damages is nonetheless barred by estoppel or waiver; that in any event plaintiff’s “total cost” approach to the problem of damages is deficient; and that, there being “no other competent proof of damages, plaintiff cannot recover.”

For the reasons which follow, it is concluded that plaintiff is entitled to recover, in the ámount of $600,000.

I

Early in 1964, defendant, acting through the Bureau of Reclamation, Department of the Interior, issued an invitation for bids (IFB) for the construction and completion of a proposed “Flagstaff-Pinnacle Peak” 345-kilovolt transmission line running from near Winona, Arizona, to the Bureau of Reclamation’s Pinnacle Peak Substation some 14 miles north of Scottsdale, Arizona. Bids were to be opened in Phoenix May 12, 1964.

The IFB indicated that the work to be performed (which included, inter alia, clearing and footings work) was to be divided into two schedules, each approximately 57 miles in length; that work should begin within 30 calendar days after the contractor’s receipt of notice to proceed; and that all of the contract work should be completed within 630 days from.the date of receipt of such notice. The IFB also included Special Condition 24, Specifications No. DC-6090, “Listings of Subcontractors”, the genesis of this litigation.

Briefly, paragraph b of Special Condition 24 required that a bidder submit with his bid the firm name and address of each subcontractor to whom a subcontract would be awarded for each category of work listed in a “Supplement to Bid Form, S.F. 21 — List of Subcontractors”. Paragraph b further stated that, “Except as otherwise provided herein, the bidder agrees, if awarded the contract, not to contract to have any of the listed categories of work performed by any subcontractor other than the subcontractor named for the performance of such work.” Special Condition 24 also provided in part as follows:

e. No substitution for any named subcontractor will be permitted prior to award, and only in unusual situations after award and then only upon the contractor’s submission, in writing, to the*-,.'Contracting Officer of a complete justification therefor and after obtaining the Contracting Officer’s written approval thereof. * * *

Mr. S. M. Rivers, who had become an employee of plaintiff on April 27, 1964, was responsible for the preparation of plaintiff’s bid on the proposed transmission line. Despite his intent to subcontract the clearing and footings work, Mr. Rivers proceeded on his own to prepare a prime contract bid for plaintiff. He endeavored to obtain bids on the clearing and footings work, and as part of this effort solicited a bid from a Mr. Hal Perry, a Phoenix contractor doing business as Sun States Contracting Company. Mr. Rivers received a bid from Sun States on the evening of May 11, 1964, the day before bid opening.

Perhaps because of the timing of the Sun States bid, plaintiff’s prime contract bid to defendant did not reflect Sun States’ bid figures on the clearing and footings work (a total of about $1,523,-000), but instead contained Mr. Rivers’ own higher bid figures for that work (a total of about $1,864,000). In bidding on the proposed transmission line, Mr. Rivers, for plaintiff, did list Sun States (as “Sun States Construction Co.”) as a subcontractor for both clearing and footings work pursuant to Special Condition 24, supra. At some time prior to coming to work for plaintiff, Mr. Rivers had checked Mr. Perry’s “credit” and had found it to be “slow but good”. No further pre-bid investigation of either Mr. Perry’s or Sun States’ financial situation was then made.

At bid opening May 12, 1964, plaintiff’s bid of $6,148,581 on the proposed transmission line was within about $115,-000 of defendant’s engineer’s estimate (of some $6,265,000), but was about $850,000 less than that of the next lowest bidder, a construction company which had just completed a parallel transmission line along the same right-of-way. Plaintiff was awarded a contract for construction of the Flagstaff-Pinnacle Peak 345-kilovolt transmission line, at an estimated price of some $6,133,000, June 5, 1964.

In the meantime, and following May 12, 1964, plaintiff had begun to investigate Sun States’ financial situation. After an unsuccessful effort to obtain information from Mr. Perry, receipt, on May 20, 1964, of a financial report showing Mr. Perry’s net worth to be rather small, and advice on June 9, 1964, from Sun States that it had secured a line of credit at a Phoenix bank (and from the bank that there was no such line of credit), two of plaintiff’s representatives visited the Bureau of Reclamation’s office in Phoenix on June 9, 1964, to inquire about the possibility of substituting another contractor for Sun States (whose financial condition was then mentioned) or of doing the clearing and footings work itself.

During this same period of time, however, representatives of Sun States, in conversations with representatives of defendant in Phoenix, had made a number of allegations respecting plaintiff. Among other things, defendant was told that plaintiff was trying to “dump” Sun States, and that plaintiff was “bid shopping”. The latter term describes a situation where, after bid opening and award, a successful government prime contract bidder who has utilized a particular potential subcontractor’s bid figure in submitting its prime contract bid “shops” the subcontract work to other potential subcontractors in an effort either to obtain from another subcontractor a lower price for the work to be subcontracted or to drive down that of the subcontractor whose figures were used in computing the prime bid.

The Office of the Chief Engineer of the Bureau of Reclamation (“the Contracting Officer”), in Denver, Colorado, was promptly advised by his subordinates in Phoenix of the substance of Sun States’ assertions about plaintiff, and of the comments and questions of plaintiff’s representatives at the Bureau’s Phoenix office on June 9, 1964.

On June 12, 1964, by letter to the Contracting Officer, plaintiff requested “permission to withdraw the name of the sub-contractor [Sun States] which we listed in our Bid Documents submitted May 12, 1964.” Plaintiff’s said letter further stated that:

Our detailed examination of the financial resources of this Corporation reveals that, in our opinion, they are inadequate to support performance of this sub-contract. We have examined the Corporation’s financial statement and the personal financial statements of the Officers, have discussed this matter with the Sun States banking affiliate — The Valley National Bank, Mr. Norman J. Miles, Assistant Vice President, and have also obtained Dun and Bradstreet Reports. We believe that the satisfactory performance of this work covered by this sub-contract would be seriously affected by this lack of financial stability.
If approval is obtained for this withdrawal, we intend to provide a subcontractor or contractors of definite financial responsibility or will provide performance by our own organization. By letter dated June 15, 1964, defend-

ant gave plaintiff written confirmation of a telephonic postponement of a preconstruction conference scheduled for June 17, 1964, and advised plaintiff that the conference would be rescheduled when its request to withdraw Sun States had been resolved.

By letter dated June 17, 1964, from the Contracting Officer, plaintiff was advised in pertinent part that:

It appears that there has been no change in the circumstances existing at time of submittal of your bid to justify substitution of subcontractors as requested. Accordingly, approval of any substitution is denied.

While the Contracting Officer had concluded by June 17, 1964, that plaintiff might be “bid shopping”, defendant’s representatives made no effort, at any time during the period 1964 — 66, to ascertain whether or not Sun States’ allegations with respect to plaintiff had any basis in fact. There is no credible evidence in the record of “bid shopping”. Moreover, the proof establishes that plaintiff was never told by anyone, prior to 1967, that Mr. Rivers or plaintiff had supposedly made any pre-bid promises to Sun States with respect to financing or •bonding, as Sun States was asserting to defendant in mid-1964.

On June 24, 1964, at plaintiff’s request, a conference between representatives of plaintiff and the Contracting Officer (and other representatives of defendant) was held in Denver, Colorado. The Contracting Officer was then told that plaintiff, having received Sun States’ bid just prior to bid opening, had been unable to make a pre-bid appraisal of Sun States’ capabilities, that Sun States had no financing and could not make bond, and that plaintiff wanted either to obtain a subcontractor with adequate financing to do the clearing and footings work or perhaps to do that work itself. A decision under Special Condition 24 was requested.

While plaintiff was then told that Sun States had approached defendant in opposition to any possible substitution for Sun States by another subcontractor (or by plaintiff), none of Sun States’ assertions to defendant about plaintiff (and one of those assertions, of pre-bid promises with respect to financing and bonding, at least tended to confirm Sun States’ financial instability) were even mentioned. The Contracting Officer reiterated that, absent a showing of some change in Sun States’ circumstances following bid opening, any substitution for Sun States was unjustifiable, and that plaintiff’s doing the work itself “would be considered a substitution.”

In consequence of that position, plaintiff did not give the Contracting Officer documents respecting Sun States’ financial condition it then had, and to which its June 12, 1964 letter to the Contracting Officer had referred. Had plaintiff done so, however, it would have made no difference. Even with clear proof of Sun States’ insolvency in June 1964, the Contracting Officer would have denied plaintiff’s request had Sun States been equally insolvent May 12, 1964, since only a postbid change in circumstances was, in his judgment, an “unusual” situation within the meaning of Special Condition 24.

Thereafter plaintiff entered into negotiations with Sun States with a view to reaching a subcontract with Sun States, and it eventually did so July 15, 1964. Two days later, on July 17, 1964, the Contracting Officer gave plaintiff notice to proceed with the work covered by the contract in suit.

In the meantime, on July 9, 1964, plaintiff had written to the Contracting Officer to advise that subcontract negotiations with Sun States were in process, but that, should they fail, the Contracting Officer would probably receive a request for reconsideration of his denial of plaintiff’s request to “substitute the proposed subcontractor, or that the work be performed by ourselves.” In the latter connection, plaintiff asked for an interpretation of the language of Special Condition 24 relating to substitution of subcontractors as it pertained to work performed by a prime contractor.

The Contracting Officer’s response, some days after a pre-construction conference attended by representatives of plaintiff, Sun States, and defendant had been held, was in substance that plaintiff was precluded by Special Condition 24 from doing the clearing and footings work, and that if plaintiff should decide not to enter into a subcontract with Sun States, and instead request approval “for substitution of yourself as prime contractor for work previously listed for performance by that subcontractor, I will be glad to give you a formal and final decision on the matter upon request being made therefor.”

Sun States subcontracted the clearing work, at a price of $210,000, and that work was completed without any apparent difficulty or delay. The footings work, however, did not proceed so well.

For liability purposes, it suffices to say that Sun States never achieved the required production rate of 10 miles of footings work per month, in fact completing no more than 10 miles of footings work during the period August-December 1964. The basic reason for Sun States’ failure to make progress was a lack of financial capability and resources, i. e., it did not have enough personnel, equipment, or material on the project to do the footings work at the required rate of progress.

By agreement dated December 23, 1964, between plaintiff and Sun States, the subcontract between the two was terminated effective December 31, 1964. Sometime in January 1965 defendant was orally advised of the termination agreement, and made no objection either to that agreement or to plaintiff’s intent to complete the footings work itself. Plaintiff completed the subcontract work in 1965.

Plaintiff contends that defendant’s refusal to permit it to substitute either another subcontractor, or itself, for Sun States constituted a breach of contract entitling plaintiff to recover for any damages thereby caused, on the grounds (1) that having shown an “unusual” situation constituting a “complete justification therefor * * * ”, it was entitled, pursuant to Special Condition 24, to replace Sun States; (2) that the Contracting Officer acted arbitrarily and capriciously, and under the influence of “bid shopping” charges, in denying its requests to substitute for Sun States, neither informing plaintiff of those charges nor affording it an opportunity to respond to them; (3) that by compelling plaintiff to subcontract with Sun States, defendant breached its implied obligation not to hinder plaintiff, or to render its performance more costly; and (4) that defendant’s refusal to permit plaintiff to do the work itself was in any event a breach of contract.

Defendant argues, however, that the Contracting Officer “never rendered a decision that was final as to the contractor’s right to substitute”; that plaintiff subcontracted with Sun States without any “force, compulsion, or duress by the Contracting Officer”; and that, if the union between the two were unwilling to any degree, the cause was pressures by Sun States on, and concessions from Sun States to, plaintiff, with defendant playing no part in the matter. Defendant’s view of the facts leading to plaintiff’s subcontract with Sun States is not a tenable one.

Winter work on the northern half of the proposed transmission line, in northern Arizona, is, because of altitude and terrain, virtually impossible. Plaintiff had therefore originally planned to commence clearing and footings work on the northern end of the project in mid-June 1964, and to proceed south without interruption, completing these portions of the work in about a year.

When plaintiff notified defendant on June 12, 1964, of its desire to “withdraw” Sun States, defendant immediately postponed a preconstruction conference scheduled for June 17, 1964. Moreover, that request, albeit not the only factor, clearly affected the timing of defendant’s issuance of a notice to plaintiff to proceed with the contract work on July 17, 1964, two days after plaintiff’s agreement with Sun States.

In the period of time between June 12 and July 17, 1964, the Contracting Officer twice denied plaintiff’s request for approval of substitution on the ground that to obtain his approval plaintiff would have to show some change in Sun States’ circumstances after bid opening. There was neither a reservation of decision pending presentation of further facts, nor anything tentative about these rulings. In all the circumstances then facing plaintiff, it reasonably concluded that it had no choice but to proceed as it did by way of a subcontract with Sun States, on terms as favorable to plaintiff as it could obtain.

Defendant’s reliance on plaintiff’s July 9, 1964 letter to the Contracting Officer as showing that the matter of substitution remained unresolved after June 24, 1964, fails. In that letter, plaintiff, recognizing the Contracting Officer’s position, simply advised him that it was proceeding as his decision required, but that it might again request reconsideration should it be unable to comply with that decision. Nothing therein detracts from the finality of the Contracting Officer’s earlier rulings.

Thus, plaintiff’s contention of breach of contract by defendant’s refusal to permit it to substitute either another subcontractor or itself for Sun States may not be finessed on the ground that plaintiff’s dealings with Sun States were the product of choice, untainted by a final decision of the Contracting Officer denying plaintiff’s request for substitution.

It is, of course, apparent that Special Condition 24, to which plaintiff agreed in submitting its bid, vested in the Contracting Officer a considerable measure of discretion. That discretion, however, was not, and cannot have been intended to be, absolute. See General Electric Co. v. United States, 440 F.2d 420, 194 Ct.Cl. 678 (1971); Argonaut Insurance Co. v. United States, 434 F.2d 1362, 193 Ct.Cl. 483 (1970). And, it is clear from the record in this case that that discretion was exercised arbitrarily, capriciously, and in breach of the Contracting Officer’s obligations to plaintiff. General Electric Co. v. United States, supra; see also Hardeman-Monier-Hutcherson v. United States, 458 F.2d 1364, 1371-72, 198 Ct.Cl. 472, 487 (1972); Penner Installation Corp. v. United States, 89 F.Supp. 545, 116 Ct.Cl. 550, aff’d 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950).

While plaintiff did receive one other bid on a portion of the footings work, Sun States was the sole bidder to plaintiff on the clearing and footings portion of the proposed contract work. Sun States’ bid reached plaintiff on the evening before bid opening. There was obviously little or no time for any investigation of Sun States by plaintiff. Even its corporate name was inaccurately listed in plaintiff’s bid documents, and plaintiff’s, not Sun States’, bid prices for clearing and footings work were used.

When, shortly after bid opening, plaintiff came to the conclusion that Sun States lacked adequate financial resources to perform a subcontract for the clearing and footings work — a conclusion which the events of the following several months proved devastatingly accurate— it twice sought the Contracting Officer’s permission, on this ground, to substitute someone else for Sun States. Sun States’ allegations to defendant of promises by plaintiff as to bonding and financing bore out Sun States’ own financial instability.

The Contracting Officer knew, or should have known, that Sun States was at least a risk. Notwithstanding, he neither advised plaintiff of Sun States’ allegations to defendant about plaintiff, and thereby in effect denied plaintiff an opportunity to refute them, nor even tried to find out whether those allegations had any basis in fact. Perhaps influenced by alleged (but clearly not proven) bid shopping, he simply insisted that a post-bid change in circumstances must be shown to obtain his approval for substitution pursuant to Special Condition 24.

In all of the facts and circumstances of this cause, the Contracting Officer acted arbitrarily and capriciously, and in breach of his contractual obligations to plaintiff, in thus denying plaintiff’s requests for substitution. See General Electric Co. v. United States, supra; Argonaut Insurance Co. v. United States, supra; Penner Installation Corp. v. United States, supra.

Plaintiff also vigorously urges that by compelling plaintiff to subcontract with an incapable subcontractor, defendant violated its implied obligation not to hinder plaintiff, nor to render its performance more costly. Cf. Space Corp. v. United States, 470 F.2d 536, 541, 200 Ct.Cl. 1, 10 (1972); Dale Constr. Co. v. United States, 168 Ct.Cl. 692, 700 (1964); Commerce International Co. v. United States, 338 F.2d 81, 85, 167 Ct.Cl. 529, 536 (1964). Except for denying that the Contracting Officer rendered a final decisión requiring plaintiff to subcontract with Sun States, defendant does not really controvert this argument. In view of the conclusions hereinabove set forth, however, the issue need not be, and is not, here reached.

Defendant does contend that, should the court conclude that the Contracting Officer did render a final and arbitrary decision, the claim herein is nonetheless barred by the doctrines of estoppel or waiver. These contentions have no merit.

One argument is that by its letter of July 9, 1964, plaintiff somehow lulled the Contracting Officer into believing that plaintiff no longer sought to submit facts necessary to justify a final decision in its favor. This is specious. The Contracting Officer had twice told plaintiff that only a post-bid change in circumstances would be considered. Plaintiff obviously could not make such a showing, and it had in effect told the Contracting Officer just that. The notion that plaintiff somehow lulled or misled defendant lacks any foundation.

Defendant also urges that by failing to advise it that plaintiff was contracting with Sun States under protest or disagreed with the Contracting Officer’s decision, and by failing to go over the Contracting Officer’s head administratively, in 1964, plaintiff is “estopped, by acquiescence or otherwise, from basing a claim upon the actions or inactions of the Contracting Officer.”

Plaintiff’s June 24, 1964, request for reconsideration was itself clearly sufficient to show the Contracting Officer that plaintiff protested, and disagreed with, his decision. Moreover, the Contracting Officer knew, or should have known from what Sun States and plaintiff had both told him, that withholding approval for substitution might well result in a claim. The proposition that plaintiff’s failure to “appeal” is a bar is supported neither by authority nor logic.

Defendant further asserts that plaintiff acquiesced in “the Contracting Officer’s position that, where the subcontractor was alleging prebid understandings concerning financing of the subcontract work, the complete facts surrounding such understandings must be brought out before substitution on the ground of ‘financial instability.’ ” This position falls, on the facts found.

Finally, Harvey Radio Laboratories, Inc. v. United States, 115 F.Supp. 444, 126 Ct.Cl. 383 (1953), cert. denied, 346 U.S. 937, 74 S.Ct. 377, 98 L.Ed. 425 (1954), and Ling-Temco-Vought, Inc. v. United States, 475 F.2d 630, 201 Ct.Cl. 135 (1973), cited by defendant as controlling on the estoppel question, are, on this record, wholly inapposite. Cf. Petrofsky v. United States, 488 F.2d 1394, 203 Ct.Cl. 347 (1973). No sound reason for invoking the doctrine is suggested, or appears.

Defendant also avers that waiver should be applied, asserting that the “law requires a contractor who claims the Government has committed a material breach of the contract to give prompt notice of such claim, and to state that it is continuing performance under protest if it elects to preserve its remedy.” As plaintiff correctly notes, 5 Williston on Contracts § 688 (3d ed.), cited by defendant in support of this proposition, pertains to loss of an excuse for nonperformance, and has no relevance to the situation here present. See Restatement of Contracts, § 410; 5A Corbin on Contracts § 1244.

In sum, plaintiff protested the Contracting Officer’s initial ruling, without success. After denial of that protest, it proceeded, as it was entitled (indeed, as plaintiff reasonably concluded, required) to proceed, by dealing with Sun States as best it could.

While defendant suggests that it relied to its detriment on plaintiff’s failure to continue to protest, the record is very clear that throughout 1964 defendant was, or at the very least should have been, aware of Sun States’ performance (or, more accurately, lack of performance), and of the fact that Sun States was on the job only over plaintiff’s protest. If, in these premises, defendant failed to protect itself, the blame must ultimately lie at defendant’s, and not plaintiff’s, doorstep.

Defendant’s speculations that the Contracting Officer might have either terminated the contract or made a full investigation (the latter something he should have done in any event) had plaintiff persisted even further than it did, or that defendant might have kept more detailed records of plaintiff’s and Sun States’ performance, furnish no basis for any different conclusion. Plaintiff’s claim is in no way barred by the doctrines of waiver or estoppel.

II

Having concluded that plaintiff is entitled to recover from defendant its damages attributable to defendant’s breach of contract, the difficult issues relating to the extent of such damages remain to be considered.

It is undisputed that plaintiff’s “total costs” .of performing the clearing and footings work were either $2,539,505 (utilizing AGC equipment costs in the computation) or $2,448,938 (utilizing booked equipment costs in the computation). There, however, agreement ceases.

Plaintiff would remove from either of the above sums what it asserts are its clearing costs, utilizing for this purpose the sum of $210,000 for which Mr. Bonner, Sun States’ sub-subcontractor, actually performed the clearing work. To each of the resulting net figures, plaintiff would then add 3 percent, as “Unbilled Corporate Charges”, and a profit factor of 5.37 percent. The resulting sums (i. e., adjusted “total costs”, with and without AGC equipment costs) are, respectively $2,509,669 and $2,429,994.

From each of these two figures, plaintiff would then subtract either (1) its revenues from the footings portion of the contract work ($1,032,028) or (2) “Average Unit Bids, 2nd, 3rd, & 4th Bidders w/10.0% Profit Removed (Assumed Included)” ($1,230,920). Plaintiff has also proffered a number of other alternative calculations, reflecting a variety of assumptions. Plaintiff’s several damage calculations in evidence vary, from a high of $1,609,314 (in its initial claim summary) to a low of $1,075,186, depending on the assumptions on which a particular calculation is based. All of the calculations have in common, however, the factual premises that plaintiff’s “total costs” were reasonable, and that none of its excess costs in connection with the footings work were attributable to plaintiff.

Defendant objects generally to all of plaintiff’s calculations of damages, vigorously contending that a “total cost” approach is improper, but adding that in any event plaintiff has erred (1) in utilizing AGC equipment costs, rather than available booked equipment costs, (2) in utilizing a “fictional” 3 percent unbilled corporate charges factor, (3) in utilizing plaintiff’s own, unreasonably low, bid figures for footings work in calculating its damages, (4) in failing to average “all of the other items with the Government estimate * * * ”, (5) in adding a profit factor to plaintiff’s costs, rather than deducting a profit factor from plaintiff’s (or an averaged) bid figure for footings work, (6) in failing to recognize that plaintiff’s costs were unreasonable, thus requiring “some ‘jury verdict’ reduction * * * ” in the costs claimed, and (7) in failing to take into account “the average clearing item bid * * * ” or, at the least, $435,000, Sun States’ bid price to plaintiff for the clearing work, in removing the clearing work from the calculation.

Plaintiff’s theory of the claim “has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated.” WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968). See also Seger v. United States, 469 F.2d 292, 304, 199 Ct.Cl. 766, 786 (1972); Law v. United States, 195 Ct.Cl. 370, 381-87 (1971); Boyajian v. United States, 423 F.2d 1231, 1234-44, 191 Ct.Cl. 233, 238-55 (1970). As defendant asserts, that theory may not properly be invoked here. Plaintiff’s low bid aside, the record precludes a finding that all of plaintiff’s costs were reasonable, or that “it was not responsible for the added expenses.” WRB Corp. v. United States, supra.

It is equally clear, however, that plaintiff suffered substantial monetary damage in direct consequence of defendant’s breach of contract. And, an examination of the record shows it to be sufficient to permit the ascertainment by way of “jury verdict”, with a reasonable degree of accuracy, of the extent of such damages. Law v. United States, supra, 195 Ct.Cl. at 386-87; Boyajian v. United States, supra, 423 F.2d at 1244, 191 Ct.Cl. at 254; WRB Corp. v. United States, supra, 183 Ct.Cl. at 425-27. In the circumstances, plaintiff’s claim does not fail for lack of proof.

Implicit in any “jury verdict”, however, is the necessity for resolution of the conflicting claims of the parties as to several factors to be weighed in reaching such a verdict: whether AGC or booked equipment costs are to be considered; the propriety of considering unbilled corporate charges (and a profit factor) vel non; and the appropriate method of viewing plaintiff’s clearing costs herein.

Actual, booked equipment costs being available, AGC equipment costs may not be considered in assessing plaintiff’s damages. Bennett v. United States, 371 F.2d 859, 178 Ct.Cl. 61 (1967); L. L. Hall Constr. Co. v. United States, 379 F.2d 559, 177 Ct.Cl. 870 (1966). A reasonable overhead factor may be taken into account in the assessment process, however, and plaintiff has proven that the 3 percent factor plaintiff would apply to its “total costs” is within the zone of reasonableness. Bennett v. United States, supra; Luria Bros. & Co. v. United States, 369 F.2d 701, 177 Ct.Cl. 676 (1966).

A profit factor, on the other hand, may not be taken into account in reaching a “jury verdict” herein. Bennett v. United States, supra, and cases there cited. Too, plaintiff’s attempt to remove clearing work from its “total costs” by subtraction therefrom of Sun States’ sub-subcontract price of $210,000, rather than its own contract price of $435,000, fails. The record shows that the sub-subcontractor did the clearing work without difficulty or delay, and fails to show that plaintiff’s cost for that work should be equated with Sun States’, rather than its own.

Upon the basis of a careful weighing of the record as a whole, including plaintiff’s actual costs of performing the clearing and footings work; the factors enumerated in the preceding two paragraphs, as there indicated; defendant’s estimate of the cost of the clearing and footings work, and all bids on that work opened May 12, 1964; the differences between the said bids (in terms of bid items) and the as-built footings work; and the fact that a definite, if not precisely measurable, part of plaintiff’s costs in performing the footings work cannot fairly be charged to defendant in any event, it is found by way of “jury verdict” that plaintiff was damaged by defendant’s breach of contract in the amount of $600,000. Cf. Teitelbaum v. United States, 458 F.2d 72, 81, 198 Ct.Cl. 150, 165 (1972); WRB Corp. v. United States, supra, 183 Ct.Cl. at 425.

      . Defendant’s Brief, pp. 5, 12, 34.

      . Plaintiff’s bid to defendant on the footings portion of the work was, however, some $145,000 less than Sun States’ bid to plaintiff on that portion of the work.

      . Plaintiff’s bid price to defendant on the clearing work was $920,000; Sun States’ bid price to plaintiff on the clearing work was $435,000.

      . Plaintiff candidly disclaims any challenge to the Contracting Officer’s integrity, asserting rather that his actions and judgments in the matter failed to comport with his contractual obligations to plaintiff.

      . Defendant’s Brief p. 5.

      . Plaintiff was then proceeding on the assumption that the controversy could well be one arising “under the contract” which would be remedied administratively. On that assumption, the disputes clause required that the contractor proceed as the Government directed, pending resolution of the dispute. [footnote by the court]

      . Defendant’s Brief, p. 19.

      . Defendant’s Brief, p. 20.

      . Defendant’s Brief, pp. 19-20.

      . See finding 19, n. 9. Plaintiff says that using AGC costs the total was actually $2,522,396, but this error in equipment costs (if it be one) does not work to plaintiff’s advantage and is immaterial to the disposition of the case since the trial judge and we both use booked equipment costs in assessing damages. The record shows that the total figure of $2,448,938 utilizing booked equipment costs is not dependent on the AGC equipment costs but was in effect arrived at independently of those AGC costs, [footnote by the court]

      . Defendant’s Objections to Plaintiff’s Requested Findings of Fact.

      . In the absence of a regulation or directive such as in Nolan Brothers, Inc. v. United States, 437 F.2d 1371, 194 Ct.Cl. 1 (1971), the burden is on the party seeking to substitute AGC costs for the contractor’s own actual, booked costs to demonstrate that the contractor’s own costs (as shown) are inadequate or incomplete or do not fairly represent the full costs rightly attributable to the particular contract. In this case, plaintiff did not succeed in bearing that burden; its effort to invoke AGC costs consisted mainly of general testimony as to the normal practice of building contractors, not criticism directed specifically to the $2,448,938, of costs calculated from its own actual, booked equipment costs in this particular instance. The plaintiff has simply failed to prove that in this case actual, booked costs are inadequate or incomplete or do not represent the full costs rightly attributable to the contract, [footnote by the court]


author: LANE, Judge.

text:
    Application of RICHARDSON INK COMPANY.
    Patent Appeal Nos. 74-609, 74-610.
    United States Court of Customs and Patent Appeals.
    March 6, 1975.

      Alan M. Abrams, Robert E. Sloat, Des Plaines, 111., attorneys of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Jack E. Armore, Washington, D. C., of counsel.
    Before M^RKEY, Chief Judge, RICH, LANE and MILLER, Judges, and ALMOND, Senior Judge.
   LANE, Judge.

DECISION

These appeals are from the decisions of the Trademark Trial and Appeal Board, 181 USPQ 845, 846 (1974), affirming the examiner’s ex parte refusal to register the wordmarks SOLID STATE (Ser. No. 390,313, filed April 26, 1971) and RICO SOLID STATE (Ser. No. 381,-950, filed January 25, 1971) for printing ink compositions and vehicles for printing inks, use since January 8, 1971 being asserted. We affirm.

OPINION

Registration of the wordmark SOLID STATE was refused under the provisions of section 2(e)(1) of the Trademark Act of 1946 (15 U.S.C. § 1052(e)(1)) on the ground that the mark was merely descriptive of appellant’s goods. The examiner and the board made reference to a page from a publication entitled The Manufacture and Use of Printing Inks, in which the following appears:

7. Hardening on Cooling — Cold Set Inks — These inks are solid materials at room temperatures, and become liquids or pastes by heating. They must be printed on special presses on which the rollers, the printing plates, and other parts of the presses are heated to a temperature above the melting point of the solid ink. After printing on the paper, the melted ink film solidifies and is dry as soon as it cools.

The board found that “Cold Set Inks” are solid inks, i. e., inks which came in a solid form, condition or state, and that the term “solid state” therefore constitutes normal language to describe such solid inks.

We agree that SOLID STATE is part of the apt descriptive name of appellant’s goods, in the sense that “wing nut” is the apt descriptive name of a nut with wings that provide a grip for the thumb and finger (Webster’s New Collegiate Dictionary (1974); see In re Ideal Industries, Inc., 508 F.2d 1336, 184 USPQ 487 (1975)). It is well settled that there is no right to the exclusive use of a mark which is only a name for or only describes a characteristic of the goods. Delaware & Hudson Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 324, 20 L.Ed. 581 (1871).

Appellant urges that the descriptiveness of a mark under section 2(e)(1) must be determined in relation to the goods for which registration is sought; that printing inks and vehicles for printing inks are normally liquids (i. e., materials in the liquid state); that the term SOLID STATE cannot be used to describe any characteristic common to all printing inks; and that the board therefore erroneously concluded that the mark SOLID STATE is descriptive of all printing inks and vehicles for printing inks. We do not agree. The law is settled that registration should be refused if the mark is descriptive of any of the goods for which registration is sought. In re American Soc’y of Clinical Pathologists, Inc., 442 F.2d 1404, 58 CCPA 1240 (1971). Solid state inks are included within the goods for which appellant seeks registration of the mark SOLID STATE. The mark indicates a characteristic, property or quality of at least some of appellant’s goods and registration was therefore properly refused.

Registration of the wordmark RICO SOLID STATE was refused under the provisions of section 6 of the Trademark Act of 1946 (15 U.S.C. § 1056) on the ground that the words SOLID STATE are merely descriptive of appellant’s goods and should be disclaimed.

Appellant urges that the mark must be considered in its entirety; that the prefix RICO is arbitrary and registrable when applied to printing inks; and that the composite mark RICO SOLID STATE considered in its entirety is not merely descriptive of printing inks, but rather is arbitrary and fanciful and accordingly registrable.

We agree with appellant that the composite mark RICO SOLID STATE must be considered in its entirety, and that so considered the mark is not merely descriptive of appellant’s goods. Although appellant’s mark RICO SOLID STATE as a whole is not “merely descriptive,” and hence registrable, appellant is not entitled to register the same unless descriptive and unregistrable subject matter contained therein is disclaimed. Moreover, the Commissioner of Patents and Trademarks has the right to enforce his requirement for disclaimer by a refusal to register the mark in the event that the requirement is not met. In re Hercules Fasteners, Inc., 203 F.2d 753, 40 CCPA 944 (1953). We think this is clearly in accordance with the mandate of section 6 of the Trademark Act of 1946 (15 U.S.C. § 1056).

In view of the foregoing, it follows that if the words SOLID STATE, which it appears appellant has declined to disclaim, are descriptive of appellant’s goods within the prohibition of section 2(e)(1), then the Commissioner did not err in conditionally refusing registration. In re Hercules Fasteners, Inc., supra. For the reasons we have already discussed, we find that the words SOLID STATE are, so far as the record shows, merely descriptive of appellant’s goods within the prohibition of section 2(e)(1) and registration of the mark RICO SOLID STATE was therefore properly refused.

The decisions of the Trademark Trial and Appeal Board are affirmed.

Affirmed.


author: BALDWIN, Judge.

text:
    NEW ENGLAND FISH COMPANY, Appellant, v. The HERVIN COMPANY, Appellee.
    Patent Appeal No. 74-549.
    United States Court of Customs and Patent Appeals.
    Feb. 27, 1975.

      William P. Cole, Philadelphia, Pa. (Synnestvedt & Lechner, Philadelphia, Pa.) attorneys of record, for appellant.
    Jacob E. Vilhauer, Jr., Portland, Ore., attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

New England Fish Company, owner of the mark KITTY for cat food, appeals from the decision of the Trademark Trial and Appeal Board, dismissing its opposition to an application by The Hervin Company, to register the following mark for cat food:

Since there is no dispute that appellant is prior in use and that the goods of the parties are substantially the same, the sole issue is- whether BLUE MOUNTAIN KITTY O’S so resembles KITTY that concurrent use of the marks on the goods is likely to cause confusion, or mistake, or to deceive. 15 U.S.C. § 1052(d).

Appellant asserts that 15 U.S.C. § 1052(d) is not applicable to a situation where one mark precisely embodies a second mark. Citing 15 U.S.C. § 1115(b)(4), appellant would have us hold that appellee is entitled to register BLUE MOUNTAIN KITTY O’S only if the “kitty” portion is used in a descriptive sense. Appellant contends that unlike Food Specialty Co. v. Kal Kan Foods, Inc., 487 F.2d 1389, (Cust. & Pat. App.1973), where “kitty” was used as an adjective for stew, the same cannot be said of the instant situation where “O’s” has no meaning in and of itself.

We do not agree with appellant’s assertions for several reasons. First, although appellee’s mark contains the word “kitty”, of paramount interest is the overall commercial impression derived by viewing the marks in their entireties in determining whether a likelihood of confusion exists. Clairol, Incorporated v. Roux Laboratories, 442 F.2d 980, 58 CCPA 1170 (1971). Second, there are inherent limitations on appellant’s right to control the use of the word “kitty” in connection with products for cats, even cat food, because of its obvious descriptive connotation. Food Specialty Co. v. Kal Kan Foods, Inc., supra. Although “kitty O’s” may be incapable of precise definition, one is certainly left with the impression that the mark BLUE MOUNTAIN KITTY O’S deals with a product having a special appeal to “kitties.”

We further note that the BLUE MOUNTAIN portion of appellee’s mark is a housemark which was registered previously for dog and eat foods, and that the Patent Office previously denied appellee registration of KITTY O’S, alone, holding that KITTY O’S was confusingly similar to appellant’s registered mark KITTY. However, there is no arbitrary rule of law that if two product marks are confusingly similar, likelihood of confusion is not removed by use of a company or housemark in association with the product mark. Rather, each case requires a consideration of the effect of the entire mark including any term in addition to that which closely resembles the opposing mark. Rockwood Chocolate Co. v. Hoffman Candy Co., 372 F.2d 552, 54 CCPA 1061 (1967).

Viewing the marks in their entireties, we agree with the board when it said:

[T]he overall differences between applicant’s entire mark “BLUE MOUNTAIN KITTY O’S” and opposer’s registered mark “KITTY” alone are sufficient to enable purchasers to distinguish between them and to avoid attributing the products offered thereunder to a single source.

Accordingly, the decision of the board is affirmed.

Affirmed.

      . The registration issued to Food Specialty Co., Inc., but was assigned, together with the goodwill of the business etc., on March 29, 1972, to the present appellant.

      . Reg. No. 702,658, issued August 9, 1960.

      . 179 USPQ 743 (1973).

      . Application serial No. 340,553, filed October 13, 1969, alleging first use on December 30, 1965.

      . 15 U.S.C. § 1115(b)(4) reads:
      If the right to use the registered mark has become incontestable under section 1065 of this title, the registration shall be conclusive evidence of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the affidavit filed under the provisions of said section 1065 subject to any conditions or limitations stated therein except when one of the following defenses or defects is established: * * * * * *
      (4) That the use of the name, term, or device charged to be an infringement is a use, otherwise than as a trade or service mark, of the party’s individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe to users the goods or services of such party, or their geographic origin;

      . Reg. No. 693,974, issued March 1, 1960.


text:
    STANDARD BRANDS PAINT CO., INC., Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 74-20.
    United States Court of Customs and Patent Appeals.
    March 13, 1975.

      Robert Glenn White, Los Angeles, Cal. (Glad, Tuttle & White, Los Angeles, Cal.), atty. of record, for appellant.
    Carla A. Hills, Asst. Atty. Gen., Andrew P. Vance, Chief Customs Section, Gilbert Lee Sandler, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This is an appeal from the judgment of the United States Customs Court, 71 Cust.Ct. 75, C.D. 4477, 366 F.Supp. 507 (1973), overruling appellant’s claim for classification and holding that the imported merchandise had been properly classified by the District Director of Customs. We reverse.

The importations consist of separate packages of wooden picture frame moldings of different styles and lengths. Each package contains two nails and two equal lengths of molding which have 45° mitered ends and a pre-drilled hole to accommodate one of the nails for assembly of a frame. An even number of packages of each style is imported so that a known number of frames of each style may be assembled. A prospective purchaser can assemble a frame of his desired dimensions by buying two packages of molding of the desired length and nailing the moldings together at their corners.

The imported merchandise, invoiced as “Wooden Picture Frames,” was classified under item 202.66, Tariff Schedules of the United States (TSUS), as wood moldings and assessed with duty at the rates of 17, 11.5, or 10 per centum ad valorem, depending on the date of entry.

Appellant claims that the importations are properly classifiable under item 206.-60 TSUS as picture and mirror frames of wood at 12, 8, or 7 per centum ad valorem, depending on the date of entry. The basis of its claim is that the imported moldings constitute unassembled frames and upon application of the doctrine of entireties such frames should be dutiable as entireties- — -picture frames of wood.

The involved statutes are:
Classified under:
Wood moldings, * * * whether or not drilled or treated:
Standard wood moldings, not drilled or treated:
******
202.66 Other Claimed under:
206.60 Picture and mirror frames, of wood
General Headnotes and Rules of Interpretation, TSUS:
10. General Interpretative Rules. For the purposes of these schedules—
******
(h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished .

The opinion of the Customs Court first noted that the item under which appellant claims has no provision for parts and therefore classification under that item could be had only for an entire frame. The court opined that anything less than an entire frame is only a part of a frame for which the item claimed under does not provide. In response to appellant’s argument pertaining to the doctrine of entireties, the court stated:

Almost 50 years ago the Court of Customs Appeals stated as follows in Altman & Co. v. United States, 13 Ct. Cust.Appls. 315, 318, T.D. 41232 (1925)
* * * .
* * * [I]f an importer brings into the country, at the same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately.
The principle expressed in the Altman case has stood the test of time. It would be enough to distinguish the present case to point out that there has been no showing here the importer intends to use the imported parts as entire articles, in fact the opposite is the case; he intends to pass them on to the purchaser in the imported state. Such a distinction, though valid, might engender an undue emphasis on the word “use”, making it seem that the importer must intend to join the disparate parts. However, whether the importer joins the parts himself or passes them on in a form which invites their assembly by someone more remote in the chain of commercial transactions, an entirety may exist. Since it seems clear that an importer may import and sell an unassembled article, I think it would be more accurate to demand of him an intent to “treat” the parts as a complete article of commerce. With this small gloss I would read the considerations outlined in the Altman case as applying with reasonable accuracy in this case. Here there is no entire article being imported because the importer fails to treat the importations as entire articles.

However, the Customs Court found the “most exact or basic expression of the weakness” in appellant’s position to be that the entire article — a picture frame — could not have been assembled at the time of importation in the form it would ultimately take. The court stated:

Although the instant importations are undoubtedly destined for use in making frames, the frames they will ultimately form cannot be constructed from the imported material at the time of importation. The exact configuration of an individual frame must await the consumer’s selection of two of the numerous possible combinations. Since the frame only comes into existence as an entirety after the consumer has purchased and assembled the component parts, it simply does not exist at the time of importation. In other words, components which have no predictable relationship with each other at the time of importation cannot be entire articles. By predictable, I mean either that one identifiable component is intended for use with another identifiable component or, more generally, that each component of a single given type or size is intended for use with a component of another type or size.
Here, the most that can be said about the importations is that a given component will be used with another component. The mere abstract mathematical prediction that a certain number of frames can be produced is insufficient if the dimensions of the frames cannot be known at the time of importation. [Emphasis added.] The Customs Court further found that

the appellant had failed to prove any error in the classification under item 202.66 insofar as that provision encompasses moldings dedicated for use as picture frames, citing Border Brokerage Co. v. United States, 63 Cust.Ct. 243, C.D. 3903 (1969).

Opinion

We do not agree with the Customs Court that the principle expressed in Altman, supra, is not applicable to the facts at bar because of an alleged failure to show an intent to either “use” or “treat” the imported merchandise as completed articles of commerce. From our examination of the exhibits and testimony, we find it to be manifest that the importer is selling, “using,” and/or “treating” the imported merchandise as unassembled picture frames, albeit one-half of each frame is sold in a separate package. Furthermore, Altman, supra, makes it clear that separate packaging of parts does not preclude the application of the doctrine of entireties.

The importer has merely given the consumer, when purchasing an unassembled picture frame, the opportunity to choose the size of picture frame he desires to assemble. This fact leads us to the basic problem — lack of a predictable relationship between the parts — which the Customs Court held to preclude the application of the doctrine of entireties to the imported merchandise.

We note that the “predictable relationship” referred to is only applicable to the size and not the shape of the frame to be assembled. The 45° mitered ends of the lengths of molding in each package make it readily apparent that only rectangular picture frames may be assembled. Thus, we are left with the question whether an unassembed 8" X 10" picture frame is a different article for classification purposes from an unassembled 10" X 20" picture frame. We think not. The imported merchandise is still basically picture frames.

We do not have here a question of whether the imported merchandise will go into picture frames or be used to decorate a piece of furniture so that we do not know what will be constructed; it is conceded that nothing but picture frames can result. Anyone skilled in using a small hammer could sit down at dockside and assemble picture frames as the imported merchandise is landed. We cannot perceive why it should not be classified as picture frames merely because the man with the small hammer could make frames in a great variety of sizes.

Appellee, citing Miniature Fashions, Inc. v. United States, 54 C.C.P.A. 11, C.A.D. 894 (1966), urges that to apply the doctrine of entireties to the instant imported merchandise would violate the well settled principle that the doctrine cannot be applied when such application would circumvent the intent of Congress. For demonstrating the intent of Congress to provide for the imported merchandise at bar under item 202.66, appellee relies upon the Tariff Classification Study, Schedule 2, Part 1, p. 23, wherein the Tariff Commission recommended:

SCHEDULE 2, PART 1 — WOOD AND WOOD PRODUCTS
Explanatory Notes
Item 202.66 covers standard wood moldings, drilled or treated, and all other moldings, including picture frame moldings, whether or not drilled or treated. [Emphasis added.]

We do not find this argument persuasive. Picture frames are made from “picture frame moldings.” “Picture frame molding” per se is not unassembled picture frame parts. It is raw material in the same sense that lumber is not furniture or parts thereof. It comes in varying lengths from which parts of picture frames must be fabricated by cutting to specific lengths which must also have 45° mitered ends. The imported merchandise at bar is made from the “picture frame moldings” referred to in the Tariff Classification Study and is more than mere molding. Accordingly, we do not perceive any Congressional intent to classify such merchandise as bulk molding. See Border Brokerage Co. v. United States, 63 Cust.Ct. 243, 244, C.D. 3903 (1969) (picture frame molding “in the white” (i. e., raw), cut up into 3 to 6 foot lengths and tied into bundles each containing 50 feet of molding, classifiable as standard wood moldings).

For the foregoing reasons, the decision of the Customs Court is reversed.


text:
    POLLARD BEARINGS CORPORATION, Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 74-13.
    United States Court of Customs and Patent Appeals.
    Feb. 27, 1975.
    Joseph F. Donohue and John P. Donohue, Donohue & Shaw, New York City, attorneys of record, for appellant.
    Carla A. Hills, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Robert B. Silverman, New York City, for the United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This is an appeal from the judgment of the United States Customs Court, 71 Cust.Ct.-, C.D. 4461, 363 F.Supp. 1191 (1973), overruling appellant’s claim for classification and holding that the imported merchandise had been properly-classified by the collector of customs. We reverse and remand.

The merchandise, invoiced as “Fan & Pump Shaft Bearing Assemblies — Auto Parts,” was classified under item 660.90, Tariff Schedules of the United States (TSUS), as parts of pumps for liquids and assessed with duty at the rate of 12 per centum ad valorem. These fan and pump shaft bearing assemblies (FPS bearings) are also known in the trade as integral shaft bearings'. ,

Appellant claims that the imported merchandise is properly classifiable under either item 660.52 TSUS as parts of piston-type engines at 8.5 per centum ad valorem or item 692.25 TSUS as parts of motor vehicles at 8.5 per centum ad valorem.

Appellee, in its answer to appellant’s complaint, asserted an alternative claim that, if the merchandise was not properly classifiable under item 660.90 TSUS, classification would be proper under item 680.35 TSUS as ball or roller bearings at 3.4 cents per pound plus 15 per centum ad valorem. Appellee stated that the merchandise is more specifically described in item 680.35 TSUS than in items 660.52 or 692.25 TSUS.

The statutes involved are:

Classified under-.
660.90 Pumps for liquids, whether or not fitted with measuring devices; liquid elevators of bucket, chain, screw, band, and similar types; all the foregoing whether operated by hand or by any kind of power unit, and parts thereof .. .12% ad val.
Claimed under by appellant-.
660.52 Parts of piston-type engines other than compression-ignition engines ...................8.5% ad val.
or
Chassis, bodies (including cabs), and parts of * * * motor vehicles:
* * * * * *
692.25 Other ....................8.5% ad val. Appellee’s alternative claim-.
680.35 Ball or roller bearings, and parts thereof.................3.4¡í per ib.+ 15% ad val.

The court summarized the physical and testimonial evidence of record as follows:

The imported steel shaft bearings (exhibit 2), which have a steel shaft approximately six inches long, are provided with a steel bearing collar upon which the shaft serves as an axis in spinning. Exhibit 3 is an article known in the motor trade as a water pump illustrating “quite clearly the manner in which the [imported] bearings are installed in the water pump as it is sold to the automotive trade”. . . . The main visible components of exhibit 3 are: (1) a cast-iron housing with a neck of sorts and finger-like extensions for hose attachments and holes for bolting it to the engine block; (2) the shaft bearing which is pressed or inserted into the neck of the housing so that it is completely enclosed by the housing except at one end; (3) a circular disk called an impeller that is pressed on the shaft at the end which faces on the engine block; (4) a so-called fan hub with four holes that is pressed on the shaft end that protrudes from the neck of the housing. Exhibit 3, in the condition assembled, is sold to the automobile trade as a water pump ready to be attached to the engine block.
Exhibit 4 is a mock-up of the front end of a motor vehicle illustrating the manner in which a pulley with four holes (exhibit 5) is fitted on the fan hub that is pressed on the imported shaft; a fan with a neck and hub with four holes, all one piece, is positioned on the short end of the shaft that protrudes through the pulley so that it is properly aligned with the pulley in a fashion that the fan and pulley can be and are bolted through the four holes to the fan hub. The mock-up also illustrates additional pulley attachments to the crank-shaft, air conditioner, air injection pump, generator, and power steering components of a motor vehicle. There are belts passing around the fan hub pulley (four belts on the illustrative exhibit) to the various other pulley connections; working off power that comes from the crankshaft. The pulley belts transmit the power necessary to operate the various components including the imported integral pump shaft bearing which, as it spins, operates the water impeller and the fan.
Plaintiff’s witnesses testified that the bearing incorporated in the pump is rotated by the belts that pass from the crank-shaft pulley to the pulley mounted on the fan hub of the bearing. In rotating, the bearing transmits power to the water pump impeller and also drives the fan. The bearing additionally takes the load created by the power that is transmitted to other components of a motor vehicle such as an air conditioner, air injection pump, generator, and power steering. Plaintiff’s witnesses expressed the opinion that all those functions are coequal in a motor vehicle in which those auxiliary components are present.
Failures associated with integral shaft bearings, in the experience of the witnesses for both sides, involved the shaft being broken at the load-bearing fan hub and under stress of supporting the fan and taking the radial load arising from the various belt drives. To forestall such failures the shaft of the imported integral shaft bearings were designed and strengthened to accept the pulley-fan attachment and the increased loads created by the power transmitted to the other components, without breaking.
The water pump (exhibit 3) is sold as an auto water pump but, in the opinion of plaintiff’s witnesses, it is not a complete pump until it is bolted to the engine block. That opinion brought them to conclude that exhibit 3 is less than a pump, but they also concluded that the imported bearings were more than part of a pump because the bearing functions as a support bracket for the fan and also drives the auxiliary components. The imported shaft bearings are sold to manufacturers of auto water pumps. A generator, water pump and crankshaft are basic components of all motor vehicles with water-cooled engines. Air conditioners, power steering and air injection pumps are optional equipment in motor vehicles. The water pump in a water-cooled engine functions continually but a fan clutch will stop the fan at certain speeds while the shaft bearing continues to spin the impeller of the pump.
Defendant’s witness expressed the opinion that the primary function of the imported bearings was the water pump function because the fan clutch can cut the fan off and the components not associated with the pump can be powered directly off the crankshaft drive.

The court below, in overruling appellant’s claim for classification, concluded that the imported bearings were “most immediately components or parts of” a water pump, rather than parts of an engine or motor vehicle. Additionally, the court found the imported bearings not to be “more than” parts for water pumps, as alleged by appellant, since the bearings did not have two coequal functions, but rather one primary function as a component for a water pump. The court stated:

Based on the physical and testimonial factual evidence of record, I find that the imported integral shaft bearings are a component, primarily designed for an auto water pump and that without the integral shaft bearings there would be no auto water pump as such. While plaintiff’s witnesses were of the opinion that the imported integral shaft bearings are designed to perform coequal functions in a motor vehicle, defendant’s witness had a contrary opinion and the physical evidence which weighs greater established that the integral shaft bearings are primarily designed to serve as a component of an auto water pump. In the condition imported, the integral shaft bearings have, not two coequal functions, but one primary use or function, namely, as a component for an auto water pump.

Thus, the court in holding the original classification correct, found it unnecessary to consider appellee’s alternative claim for classification.

Opinion

At the outset we note that “this court will not reverse the lower court on a question of fact except where the findings are . . . clearly contrary to the weight of the evidence.” United States v. P. W. Myers & Co., 45 CCPA 48, C.A.D. 671 (1958); Northam Warren Corp. v. United States, 475 F.2d 647, 60 CCPA 117, C.A.D. 1092 (1973). Thus, since “[i]t is well settled that articles which in fact constitute more than other articles are not classifiable under provisions applicable to those other articles”, United States v. Flex Track Equipment, 458 F.2d 148, 59 CCPA 97, C.A.D. 1046 (1972), the question before us is whether the finding of the Customs Court, that the imported bearings are not “more than” parts for water pumps, is clearly contrary to the weight of the evidence. We answer this question in the affirmative.

Not only appellant’s two witnesses, but appellee’s sole witness acknowledged the facts that rotating the fan is an “important function” performed by the imported bearings and such rotation is essential to the proper functioning of an automobile. In acknowledging these facts, appellee’s witness did limit his testimony to the situation wherein the fan is rotating to provide cooling to the automobile’s radiator. He pointed out that the fan does not rotate 100 percent of the time since the fan is equipped with a fan clutch arrangement which enables the fan to stop rotating while the water impeller rotates continuously. However, we do not find that the intermittent operation of the fan detracts from the importance of the fan rotating and fan supporting functions of the imported bearings. Additionally, we note that both appellant and appellee agree that the imported bearing supports the fan clutch arrangement which enables the intermittent operation of the fan.

Furthermore, appellee’s witness, as did one of appellant’s witnesses, testified that the end of the imported bearing which supports the fan has the greatest stress exerted upon it and is the end of critical importance with respect to the strength of the bearing. Thus, the imported bearings are designed in accordance with the stresses resulting from the fan supporting and rotating function, rather than from the stresses resulting from the water impeller supporting and rotating function of the bearing.

Therefore, in view of the foregoing, we agree with appellant that the weight of the evidence clearly establishes that the imported bearings do not have one primary use or function, but rather have a dual primary function — supporting and rotating both the fan and water impeller — which renders the imported bearings “more than” parts for water pumps.

We do not find United Carr Fastener Corp. v. United States, 54 CCPA 89, C.A.D. 913 (1967), or Trans-Atlantic Co. v. United States, 471 F.2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), to be controlling. The instant fan rotating and supporting function is not an “auxiliary” function as was the case in United Carr, supra; nor do the facts of the case at bar show the imported merchandise to possess a single primary function as was the case in Trans-Atlantic, supra.

However, appellant had a dual burden of proof to produce substantial evidence tending to prove not only that the original classification was incorrect— which we hold has been done — but also that one of its claimed alternative classifications was proper. United States v. New York Merchandise Co., 435 F.2d 1315, 58 CCPA 53, C.A.D. 1004 (1970). Since the Customs Court did not find it necessary to consider either the second part of appellant’s burden or appellee’s asserted alternative claim, on which both appellee and appellant submitted a substantial amount of evidence, we believe the Customs Court should be provided an opportunity to express its views on these issues.

Therefore, the case is remanded to the Customs Court for further proceedings not inconsistent with this opinion.

       Exhibit 7 is an engine belt and pulley chart showing the manner in which the various pulley and belt attachments can be arranged should a purchaser of a motor vehicle opt for one or more of the components requiring a pulley attachment. The generator, water pump and crankshaft pulleys are basic in all motor vehicles that have water-cooled engines.
      Exhibit 8 is a sample of a shaft bearing used to support the fan in a motor vehicle with an air-cooled engine.

       Although we find it unnecessary to decide whether the other function of transmitting power to the air conditioner, air injection pump, generator, and power steering, is likewise another primary function, we note that appellee’s sole witness testified that “it is a very usual function of an integral shaft bearing to carry the load and transmit the power to the generator.”