author: WILKEY, Circuit Judge:

text:
    John R. GREENYA, Appellant, v. GEORGE WASHINGTON UNIVERSITY et al.
    No. 73-2056.
    United States Court of Appeals, District of Columbia Circuit.
    Argued 16 Jan. 1975.
    Decided 2 May 1975.

      Edward L. Genn, Washington, D. C., with whom Herbert L. Karp, Washington, D. C., was on the brief for appellant.
    Donald L. Ivers, Washington, D. C., with whom Denver H. Graham, Washington, D. C., was on the brief for appellee, George Washington University, also argued for appellee Reesing.
    Thomas D. Quinn, Jr., Washington, D. C., was on the brief for appellee John Reesing, Jr.
    Before MacKINNON and WILKEY, Circuit Judges, and VAN PELT, United States Senior District Judge for the District of Nebraska.

       Sitting by designation to 28 U.S.C. § 294(d).

   Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This case arises out of the termination of appellant’s employment as a part-time, off-campus instructor with the College of General Studies of The George Washington University. During his last academic year, appellant taught one English course each semester at the United States Naval School of Hospital Administration, Bethesda, Maryland, where his students were mainly naval officers and other persons attached to the School. The University provided these courses to the Navy under contract and the University, in turn, arranged for an instructor. Appellant’s complaint claimed a violation of his civil rights and common law claims of defamation, wrongful termination, and breach of contract by George Washington University and John Reesing, Jr., the Chairman of the English Department. At trial the court granted defendants’ motion for a directed verdict on the constitutionally-based claims for relief and on the claims relating to defamation. The issues relating to wrongful termination and breach of contract went to the jury, 'who found for defendants. We affirm.

I. Constitutionally-Based Claims

Initially we must determine whether the District Court was in error when it determined (after considering appellant’s evidence at trial) that appellant had failed as a matter of law to present any constitutionally-based claims for relief. Appellant had alleged that he had been fired because one or more articles he had written and had published aroused the displeasure of defendant Reesing. It is contended that as a result Reesing failed to renew appellant’s contract, a contract which would otherwise have been routinely renewed. Although defendants contest both these allegations, the District Court did consider appellant’s contractual claims sufficiently substantial to permit them to go to the jury. Therefore, in ruling on the constitutional claims, we must also assume that appellant would have prevailed sufficiently on these allegations to permit them to go before the jury. In addition, both sides concede that appellant was granted no procedural rights whatsoever in connection with the non-renewal of his contract.

The District Court’s grant of a directed verdict for defendants is based on two grounds: First, after listening to the evidence, it determined that there was a lack of sufficient governmental involvement in appellant’s employment relationship or termination to trigger application of First or Fifth Amendment guarantees. Second, even if there had been sufficient governmental involvement, the Civil Rights Statute, 42 U.S.C. § 1983, failed to give appellant a claim for monetary relief, because it was inapplicable by its terms to actions undertaken “under color” of federal law or custom. As will be discussed in more detail below, we find the District Court was correct on both these grounds.

A. State Action

All analysis of constitutional rights must begin with a recognition that the Constitution, with rare exceptions, is a declaration of the powers, duties, and limitations of the Federal Government and of the States. Although government has broad power to prohibit actions undertaken by private individuals, the Constitution proprio vigore only places limitations on actions undertaken by governmental entities. Simple though the distinction may seem between that which is public and that which is private, and although much has been written on the topic, the increasing number of teacher dismissal cases reaching the federal courts from private universities indicates that some discussion of the relevant constitutional issues is in order.

George Washington University, like nearly all private institutions of higher learning, received a corporate charter from the appropriate governmental chartering authority, is exempt from taxation under federal and local law because it is an educational institution, and receives federal funding for certain of its programs and capital expenditures. We have no difficulty deciding that the first two factors do not constitute sufficient governmental involvement in the University to make it a governmental entity for constitutional purposes. The granting, of a corporate charter is ministerial governmental action and does not involve the Government to any significant degree in either the management or the promotion of a chartered corporation. Similarly, granting tax-exempt status to a class of organizations such as institutions of higher learning, although it tends to foster support for organizations so exempted, does not involve Government in the management of such organizations or in the promotion of particular exempted organizations within the class. Even in the more rigid context of the Establishment Clause mere tax exemption of religious organizations has- consistently been found not to breach the separation of church and state.

Looking to the third factor, however, we find some cases that have held that significant government funding constitutes sufficient state involvement in the activities of the recipient to trigger constitutional guarantees for those dealing with the recipient. With rare exceptions these cases have dealt with racial discrimination practiced by recipients of government funds. “It is arguable . . . that racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute ‘state action’ with respect to it than would be required in other contexts . . . With the possible exception of racial discrimination by recipients of government funding, we believe that mere financial support for particular projects also represents insufficient government involvement.

In most respects such financial support can be viewed the same as a tax exemption. Such support is generally provided to a large class of qualified organizations and does not involve government in the actual management of the funded program. It might be argued that a tax exemption is distinguishable because it merely provides a vehicle for private funding, while government grants, loans, or loan guarantees represent direct governmental support. The reality is that while a direct grant represents a matching fund arrangement between government and recipient, a tax exemption is a matching fund arrangement entered into between government and the recipient’s contributors. Although the conditions attached to direct grants, loans, or loan guarantees might be somewhat more detailed and exacting than those for tax exempt status, the distinction does not become significant until the conditions become so all pervasive that the Government has become, in effect, a joint venturer in the recipient’s enterprise.

Our conclusions are predicated on the absence of any showing before the District Court that the Federal or District of Columbia Government has exercised any role in the management of George Washington University or has adopted a pervasive scheme of statutes, codes, and conditions which has the effect of regulating in detail the University’s management. While the determination of how much governmental involvement is necessary before a private institution is subject to constitutional limitations must be made on a case by case basis, we are clear that the mere receipt of government loans or funding by an otherwise private university is not sufficient involvement to trigger constitutional guarantees in the University’s relations with its employees.

Realizing that the above three factors would probably prove insufficient, appellant has sought to augment his case by emphasizing that he was employed to teach government employees at government facilities. This is of no importance in light of the evidence that he was always under the supervision and control of University officials, and that he maintained no contractual relations with the Navy. Nothing in the record indicates that the Navy had any right to say who would be hired to teach the English courses. Neither does the record indicate that the Navy had anything whatsoever to do with the failure to renew appellant’s contract. Appellant was merely the employee of an independent contractor who was providing educational services to the Navy.

George Washington University must, in the present case, be viewed as a private institution. Absent a nexus between appellant’s termination by the University and the Navy, appellant can have no claims for relief against the University or its employees arising under the First Amendment or the procedural due process guarantees of the Fifth Amendment.

B. Jurisdiction under the Civil Bights Statute

Appellant insists that notwithstanding the Supreme Court’s opinion in District of Columbia v. Carter he ought to be able to present constitutionally-based claims for monetary relief. He appears to be under the misapprehension that the District Court was deciding that the Civil Rights Statute, 42 U.S.C. § 1983, was inapplicable within the District of Columbia and therefore he has argued that an equal protection problem lurks in the statute.

Carter holds that section 1983 is inapplicable to actions against the District of Columbia, because the District was neither a “State” nor a “Territory” within the meaning of the statute, which provides a claim for equitable or legal relief to any person who has been denied constitutional rights “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . .” This case is definitely not an action against an organization acting under color of state or territorial law. The District Court’s reference to Carter was by way of underscoring the fact that if section 1983 was inapplicable to the District, it was certainly inapplicable to an organization such as George Washington University which is argued, to be acting under color of federal law.

We do not suggest that one is without any remedy if an organization acting under color of federal law is depriving a person of his constitutional rights. We only hold that plaintiff has no claim arising under the Civil Rights Statute and that if a claim for damages against a federal instrumentality exists at all it must be created by the Constitution itself.

II. The Common Law Claims

The District Court directed a verdict for appellees on the issues of defamation and punitive damages. The alleged defamatory statement was an entry on a 3 x 5 index card in the Office of Academic Staffing made at the direction of Reesing stating, “Do not staff.” Appellant contends that the phrase carries an innuendo of either incompetence or dishonesty. Although appellees contest the assertion that the statement was in any sense defamatory and argue that Green-ya was not damaged, their basic contention is that there was no publication.

It is well accepted that officers and faculty members of educational organizations enjoy a qualified privilege to discuss the qualifications and character of fellow officers and faculty members, if the matter communicated is pertinent to the functioning of the educational institution. Concomitantly we believe the privilege extends to internal records in which such matters are discussed or recorded. For a plaintiff to overcome the privilege he must prove that a publication occurred outside normal channels or that the normal manner of handling such information resulted in an unreasonable degree of publication in light of the purposes of the privilege or that publication was made with malicious intent. Since no evidence was introduced tending to overcome the qualified privilege, a directed verdict was proper as to defamation and punitive damages.

Appellant also complains of a ruling at trial striking as irrelevant Plaintiff’s Exhibit No. 3, the A.A.U.P. [American Association of University Professors] Policy Documents and Reports (1971 Edition), a document containing seventy-nine finely printed pages. The court found the exhibit to be irrelevant because it was published some two years after the events involved in the litigation and because the policies contained in the document had never been adopted by the University and thus had not been incorporated into the University’s contractual relations with its employees. The trial court acted well within its discretion on this evidentiary matter.

Appellant has contested the jury instructions on numerous grounds. We have examined those instructions and have found no reversible error.

Affirmed.

      . The Thirteenth Amendment, for example, is not merely a prohibition of laws establishing or upholding slavery, “but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U.S. 3, 20, 3 S.ct. 18, 28, 27 L.Ed. 835 (1883); Jones v. Mayer Co., 392 U.S. 409, 438, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).

      . See, e. g., Burke & Reber, State Action, Congressional Power, and Creditor’s Rights: An Essay on the Fourteenth Amendment, 46 S.Cal.L.Rev. 1003 (1973); Friendly, The Dartmouth College Case and the Public-Private Penumbra, 12 Texas L.Q. (2nd Supp.) 141 (1969); Williams, The Twilight of State Action, 41 Texas L.Rev. 347 (1963); Lewis, The Meaning of State Action, 60 Colum.L.Rev. 1083 (1960); Note, 43 Ford.L.Rev. 388 (1974); and Note, State Action: Theories for Applying Constitutional Restrictions to Private Activity, 74 Colum.L.Rev. 656 (1974).

      . See, e. g., our recent opinion in Spark v. The Catholic University, slip page 164, 167 U.S.App.D.C. 56, 510 F.2d 1277 (1975), and cases cited in notes 4 and 6.

      . No “state action” results from the grant of a tax exemption: Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969).
      No “state action” results from the grant of a corporate charter: Trustees of Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 635-39, 4 L.Ed. 629; Blackburn v. Fisk University, 443 F.2d 121 (6 Cir. 1971). “State action” has been found on the basis of a tax exemption where allegations of racial discrimination were being made: Jackson v. Statler Foundation, 496 F.2d 623 (2nd Cir. 1974) (if substantially dependent on tax exemption); Falkenstein v. Dept. of Revenue, 350 F.Supp. 887 (D.Or.1972) (three-judge court), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681 (1973). See also Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971) (three-judge court), aff’d per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971); McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972) (three-judge court).

      . Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

      . Under circumstances in which there was neither substantial governmental control nor allegations of racial discrimination, the following cases can fairly be read as holding that government funding is insufficient to transform a private organization into a governmental instrumentality: Wahba v. New York University, 492 F.2d 96 (2nd Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); Junior Chamber of Commerce of Rochester, Inc. v. United States Jaycees, 495 F.2d 883 (10th Cir. 1974), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2nd Cir. 1973) (student expulsion); Weigand v. Afton View Apartments, 473 F.2d 545 (8th Cir. 1973) (non-renewal of tenant’s lease; direct funding and reduction in state real estate taxes); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971); McGuane v. Chenango Court, Inc., 431 F.2d 1189 (2nd Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1238, 28 L.Ed.2d 532 (non-renewal of tenant’s lease; housing project receiving federal mortgage insurance); Powe v. Miles, 407 F.2d 73 (2nd Cir. 1968) (students not in publicly supported ceramics college); Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968).
      “State action” was found in the following cases — all except the first are in the context of racial discrimination: McQueen v. Druker, 438 F.2d 781 (1st Cir. 1971) (non-racial; tenant whose lease was not renewed makes procedural due process and First Amendment arguments; landlord had received very substantial governmental financial assistance); Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (racial discrimination); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945) (racial discrimination); cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

      . Coleman v. Wagner College, 429 F.2d 1120, 1127 (2nd Cir. 1970) (Friendly, J., concurring).

      . Lewis, The Meaning of State Action, 60 Colum.L.Rev. 1083, 1108 (1960). Contra, Note, State Action: Theories for Applying Constitutional Restrictions to Private Activity, 74 Colum.L.Rev. 656, 675-77 (1974).

      . In the context of racial discrimination by a private club licensed to serve liquor by the Pennsylvania Liquor Control Board, the Supreme Court stated:
      The District Court was at pains to point out in its opinion what it considered to be the “pervasive” nature of the regulation of private clubs by the Pennsylvania Liquor Control Board. As that court noted, an applicant for a club license must make such physical alterations in its premises as the board may require, must file a list of the names and addresses of its members and employees, and must keep extensive financial records. The board is granted the right to inspect the licensed premises at any time when patrons, guests, or members are present.
      However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.
      Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972).

      . Looking again to the Establishment Clause context, we find, for example, that government funding for building projects at institutions sponsored by religious institutions to be used for secular purposes has been held not to constitute significant governmental involvement with religion and thus was not prohibited by the First Amendment. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (colleges and universities); Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899) (hospital).
      Although appellant has not raised the argument, we have considered whether higher education constitutes “state action” because it is a “public function” as that term has been developed since Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and have concluded that it is not. We agree with the Second Circuit’s conclusion that education, even at the primary or secondary levels, has never been a state monopoly in the United States. As a historical matter, the wide-scale private development of higher education in this country preceded state entry into the field by more than a century. Powe v. Miles, 407 F.2d 73, 79-80 (2nd Cir. 1968), reaffirmed, Grafton v. Brooklyn Law School, 478 F.2d 1137 (2nd Cir. 1973). Contra, Developments in the Law-Academic Freedom, 81 Harv.L. Rev. 1045, 1060-61 (1968).

      . 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

      . The cases holding that section 1983 is inapplicable to persons acting under color of federal law are legion. See, e. g., Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 398 n. 1, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlan, X, concurring); Long v. Parker, 390 F.2d 816, 819 (3rd Cir. 1968); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Jones v. Perrigan, 459 F.2d 81, 83 (6th Cir. 1972); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 .(1972).

      . If the Constitution creates a right, privilege, or immunity, it of necessity gives the proper party a claim for equitable relief if he can prevail on the merits. Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). However, the Constitution, unlike section 1983, does not automatically create an action for money damages for all deprivations of constitutional rights. The Supreme Court has found that an action does lie for violations of the Fourth Amendment. Bivens v. Six Unknown Federal Narcotics Agents, supra. On the other hand, the lower federal courts have split over whether violations of the First Amendment or the due process guarantees of the Fifth Amendment also give rise to actions for money damages. Cases finding a cause of action: States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (Fifth Amendment rights); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972) (dictum; Fifth Amendment right to a fair trial); Bethea v. Reid, 445 F.2d 1163 (3rd Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972) (held that a complaint alleging violation of Fourth and Fifth Amendment rights stated a claim for relief); Gardels v. Murphy, 377 F.Supp. 1389, 1398 (N.D.Ill.1974) (First Amendment rights); Butler v. United States, 365 F.Supp. 1035 (D.Hawaii 1973) (First Amendment rights); Johnson v. Alldredge, 349 F.Supp. 1230 (M.D.Pa.1972), affirmed in part, reversed in part on another issue, 488 F.2d 820 (3rd Cir. 1973) (access by prisoner to the federal courts); see also James v. United States, 358 F.Supp. 1381 (D.R.I.1973) (dicta; favors expansive reading of Bivens); Washington v. Brantley, 352 F.Supp. 559, 564 (C.D.Fla.1972) (assumes arguendo that Bivens recognizes a cause of action for violation of all constitutionally protected interests). Contra, Archuleta v. Callaway, 385 F.Supp. 384, 388 (D.C.Colo.1974); Moore v. Schlesinger, 384 F.Supp. 163 (D.C.Colo.1974) (First Amendment); Smothers v. Columbia Broadcasting System, Inc., 351 F.Supp. 622, 626 (C.D.Cal.1972) (First Amendment); Davidson v. Kane, 337 F.Supp. 922, 924 (E.D.Va.1972) (limited Bivens to cases arising under the Fourth Amendment). The question has been left open by this court and by the Second Circuit. Cardinale v. Washington Technical Institute, 163 U.S.App.D.C. 123, 128, 500 F.2d 791, 796 n. 5; Wahba v. New York University, supra, 492 F.2d at 103-04. Even if it were decided that federal officers can be sued for damages for violations of the First and Fifth Amendments, such a decision would not automatically sweep within its ambit a case such as this one where private parties and not federal officers are allegedly acting under col- or of federal law or custom. Fletcher v. Rhode Island Hosp. Trust Nat. Bank, 496 F.2d 927, 932 n. 8 (1st Cir. 1974). Because we find no state involvement and because the issue was not raised before this court or the District Court, we do not feel compelled to reach these issues. Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 239, 414 F.2d 1125, 1135 (1969).

      . Prosser, Law of Torts § 115 (4th ed. 1971), p. 791; see also Blake v. Trainer, 79 U.S.App. D.C. 360, 148 F.2d 10 (1945).

      . Prosser, supra; Blake v. Trainer, supra; see also Hunt v. Calacino, 114 F.Supp. 254 (D.D.C. 1953).


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM: BAZELON, Chief Judge

license: Public Domain

text:
    LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Karl J. Leib, Jr., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SANTINI BROTHERS, INC., Respondent.
    Nos. 74-1036, 74-1243.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 15, 1975.
    Decided April 30, 1975.

      Bruce H. Simon, New York City, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court with whom H. Reed Ellis, New York City, was on the brief for petitioners in 74 — 1036 and respondent in 74— 1243.
    Alan Banov, Atty., N. L. R. B., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick H. Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., were on the brief for respondent in 74 — 1036 and petitioner in 74-1243.
    Karl J. Leib, Jr., Miami, Fla., was on the brief for intervenor.
    Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.
   Opinion

PER CURIAM.

Opinion filed by Chief Judge BAZELON, concurring in part and dissenting in part.

PER CURIAM:

This case involves a determination by the National Labor Relations Board (the Board) that Local 814 of the Teamsters Union violated sections 8(b)(4) and 8(e) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4) and 158(e) (1970), by entering into and attempting to enforce a provision of its collective bargaining agreement with Santini Brothers, Inc. For the reasons stated herein, we remand the record for clarification.

Prior to 1948, movers of household goods and office furniture in the New York metropolitan area utilized employees represented by Local 814 of the Teamsters Union to perform all aspects of their business. However, in that year, a large interstate moving company began utilizing “owner-operators” for so-called long distance hauling, moves in excess of 500 miles. The owner-operators own the tractors that pull the trailers used in long distance moving, contract with the moving companies for hauling business and generally lease the trailers from the company. This method of performing long distance hauling proved attractive to both drivers and companies, and presently, the twenty New York area carriers that perform the bulk of long distance hauling use owner-operators. Santini Brothers, Inc., one of the largest movers in that area, began using owner-operators in 1962 to counteract the deterioration in its long distance moving business as its best drivers became owner-operators for competitors; by 1967, Santini used owner-operators for virtually all of its long distance moving.

Local 814’s concern with the practice of using owner-operators first manifested itself in the 1962 — 1965 collective bargaining agreement between the union and the Moving and Storage Industry of New York, a multi-employer bargaining unit representing approximately 300 area moving and storage companies including Santini. This agreement, and subsequent contracts through 1971, provided that: “the owner-operator, commission or percentage method of operation shall not be practiced on local work covered by this agreement. The percentage or commission method of operation shall likewise not be practiced on long distance moving.” These agreements also provided for joint study to explore the effects of utilizing owner-operators for long distance hauling.

In the 1971 negotiations between the union and the industry, the union demanded that all persons involved in long distance moving be treated as employees under the contract, regardless of whether they had been defined as owner-operators. From initial opposition, the employers acceded to .the union’s demands, accepting the following provision in Article 24 of the agreement.

A.l. All persons performing long distance driving under contract to an employer covered by this agreement (whether as “owner-operator,” “percentage driver,” “commission driver,” or otherwise) shall be covered by this agreement as employees (hereinafter referred to as contract employees).

Since the collective bargaining agreement contained a union security clause, the effect of this provision was to require that the owner-operators join Local 814 or lose their contracts.

The union sought to enforce Article 24 in the spring and summer of 1972 by advising Santini that it was violating the agreement and by notifying the owner-operators that they were required to join the union. On October 30, 1972, Local 814 engaged in a work stoppage to protest Santini’s failure to implement Article 24. The work stoppage ended only after Santini’s President agreed to transmit signed membership applications from the owner-operators as he obtained them and to forbid nonsigners to load or unload in the New York metropolitan area. Several owner-operators refused to apply for membership. Thereafter, Santini allowed those who joined Local 814 to load and unload in New York, but not those who refused to join.

On November 8, 1972, Karl J. Lieb, on behalf of several owner-operators, filed unfair labor practice charges against Local 814 and Santini. On June 29, 1973, an Administrative Law Judge (ALJ) found that Local 814 had violated the “secondary boycott” provisions of the National Labor Relations Act and that Local 814 and Santini had entered into an illegal agreement because Article 24 was a prohibited “hot cargo” clause. On January 8, 1974, the Board affirmed this decision without comment. Local 814, Teamsters (Santini Brothers, Inc.) 208 NLRB No. 22 (1974).

By adopting the ALJ’s opinion, the Board held that the owner-operators were not employees within the meaning of section 2(3) of the Act, 29 U.S.C. § 152(3) (1970), but rather were “independent contractors.” Therefore, the Board concluded that Article 24 itself and the union activity aimed at enforcing Article 24 were directed at forcing Santini to engage in conduct prohibited by the Act, specifically to coerce the independent contractors to join the union or to cease doing business with them.

Local 814 contends initially that the Board erred in concluding that the union violated sections 8(b)(4) and 8(e) of the Act, for even if the owner-operators were independent contractors, Article 24 is a legitimate work preservation clause. We cannot agree. As written, Article 24 neither establishes union work standards for the subcontracting of work nor requires that specific work be done by members of the bargaining unit. Rather, Article 24 purports to require the owner-operators to join the union by defining them as “employees,” and hence subjecting them to the union security agreement.. If Article 24 were drafted to require that only members of Local 814 may engage in long distance hauling or that any subcontracting to owner-operators must be consistent with union work standards, the case would be much different. However, the provision before us is clearly a union signatory agreement violative of sections 8(b)(4) and 8(e) if the owner-operators are not “employees.”

As to this question, the Board adopted the opinion of the ALJ, which concluded that the owner-operators were not employees within the meaning of section 2(3) of the National Labor Relations Act. However, shortly thereafter, the Board also adopted the decision of another ALJ in Local 814, Teamsters (Molloy Brothers Moving and Storage, Inc.), 208 N.L.R.B. No. 43 (1974), which concluded that owner-operators who contracted with another member of the Moving and Storage Industry of New York were employees within the meaning of the Act. We believe the two decisions are factually similar and ostensibly inconsistent. Because the Board has not explained its reasons for reaching different results, see Greater Boston Television Corp. v. F. C. C., 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), we remand the record for clarification. If the Board finds the two indistinguishable, it should so inform the court. See N. L. R. B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).

Chief Judge Bazelon dissents from the scope of this remand, arguing that it can only produce a post hoc rationalization for the Board’s actions. We cannot agree. This court has continually stressed that we are partners with, rather than adversaries to, the administrative agencies. See, e. g., Greater Boston Television Corp., v. F. C. C., supra, 444 F.2d at 851. As such, we think it only fair to give the agency a full and frank opportunity to explicate its actions before we consider reversal. While the possibility exists that the agency will offer a post hoc rationalization, that possibility also exists under Judge Bazelon’s broader proposal. Indeed, we believe that Judge Bazelon’s proposal would heighten the possibility that the agency might substitute rationalization for reasoning, since his call for a “thorough reconsideration of the doctrinal quicksand in this area” would place the court firmly in an adversary position to the Board.

Moreover, we cannot agree with the dissent’s characterization of the circumstances under which the remand for clarification may be utilized. Most recently, this device was utilized in Local 441, IBEW v. N. L. R. B., 167 U.S.App. D.C. 53, 510 F.2d 1274 (1975) the division sought clarification, inter alia, of the Board’s position concerning the legal effect of the conduct at issue. We therefore believe that the remand for clarification remains a useful and appropriate device for determining that an agency has engaged in reasoned decision making.

So ordered.

BAZELON, Chief Judge

(concurring in part, dissenting in part):

I agree that Article 24 is not a work preservation agreement but rather a union signatory agreement. The validity of the Board’s decision thus turns on whether it properly adopted the finding of the Administrative Law Judge that the owner-operators of Santini were “independent contractors” and not “employees”. On consideration of that issue, I find myself in a maze of precedents with few standards for decision discernable. I, of course, note that Congress has quite clearly commanded that the common law definition of “independent contractor” be the basic guide for distinguishing between “employees” and “independent contractors.” This does not mean that considerations of labor policy are irrelevant but that they be considered in light of the common law test of “control”. Under this test the degree of control which an employer exercises over a worker determines whether the worker is an “employee” or an “independent contractor.” How great a degree of control must exist, how that control is to be quantified and how various incidents of control are to be weighed comparatively are questions left unanswered by Congress and by the Board in its various efforts in this area. We are, however, required to defer to the Board’s determination if that determination involves a reasonable choice among competing considerations.

The competing considerations in this case are as follows. On the side of “independence”, I notice that the owner-operators own their own “tools”, the tractor cab; that they are paid by the job and not by the hour; that they receive no workmen’s compensation or retirement benefits; that they are responsible for all costs associated with hauling, including repairs and maintenance, road taxes, living expenses, damage insuranee, and packing materials; that they may refuse loads and may determine their routes once they accept a load; and that they may hire their own assistants to aid in loading and driving. On the other hand, in favor of employee status, I find that the “tools”, the tractor cab, is leased exclusively to Santini and the driver has no right to use it on jobs other than with Santini; that the payment by the job is largely dependent on set rates established by the ICC, the driver receiving a variable percentage depending on what services he performs; that the owner-operator by custom if not by contract works only for Santini and does not drive for other carriers ; that Santini requires driver compliance with workmen’s compensation laws, requires certain kinds of liability insurance, requires a deposit of $3,000 to insure driver compliance with various safety and other regulations; that loads must be delivered within a set time; and that Santini’s arrangements with United Van Lines require the owner-operators working on United jobs to attend United driver training school and to follow the United drivers’ manual. Perhaps more important than all of these factors is the pervasive government regulation of interstate hauling with the attendant rules and procedures imposed upon the licensed carrier (here Santini) and through the carrier on the owner-drivers. Santini, of course, requires that its owner-drivers comply with government regulations. It is not immediately clear to me which way these regulations count, toward “independence”, toward “employee” status or neutral on the question of independence.

I note one argument drawn from the national labor policy which supports the Board’s position. Here the union sought to impose economic sanctions on an employer to force the employer to coerce employees not members of the union to join the union. This is not a case where a group of employees has joined a union and seeks to bargain with the employer. Thus, the definition of “employee” in this case — in a manner unlike a case where the workers seek to bargain after joining a union — involves the § 7 rights of the relevant workers. The TaftHartley Act in its essential structure operates to proscribe efforts by unions to garner jurisdiction over employees without a free choice on their part to forego individual bargaining and embrace collective bargaining. Article 24, which operates as a union signatory agreement, is in derogation of this central policy of Taft-Hartley. With this in mind, the union’s charge that Santini and the owner-operators have deliberately drawn their agreements to avoid “employee” status is transformed into a powerful argument against the union’s position, viz. that the owner-operators exercising their § 7 right not to join a union have opted instead for individual bargaining. The union’s apparent remedy under the structure of the NLRA is to organize the owner-operators, to force an alteration in the contracts between the operators and Santini and thereby create an “employee” status. To do this, of course, the union must obtain the consent of the owner-operators which apparently it does not have. The union’s attempt to create “employee” status through pressure on the employer to cause indirect pressure on the owner-operators finds no support in national labor policy.

This argument is, however, defeated for the present by an apparent inconsistency between the Board’s decision in this case and in the closely related case of Molloy Brothers Moving and Storage. Molloy also involved Local 814 and the Moving and Storage Industry of New York, and particularly concerned whether the owner-operators of Molloy were employees or independent contractors. An Administrative Law Judge different from the one that decided this case held that the Molloy owner-operators were employees and not independent contractors. The Board also affirmed Molloy without opinion. There is no apparent distinction between Molloy and the case sub judice. While there was more evidence in Molloy of owner-operator compliance with work rules promulgated by Allied Van Lines with whom Molloy Brothers were affiliated, the extent of Molloy’s right of control was no larger than Santini’s and both extended well beyond the requirements of government regulation through use of drivers’ manuals. The Board in its brief suggests that Molloy’s health insurance plan and a profit-sharing plan serve to distinguish it from Santini. I do not think, in the absence of Board explanation, that these two relatively minor distinctions are sufficient to justify different results. I further note that the Board’s decisions in general on the status of truck drivers who own their vehicles seem difficult to reconcile.

The requirement of a reasoned decision is central to judicial review of administrative action. Fulfillment of this requirment mandates an ageny to reconcile within reason its precedents and to avoid inconsistent decisions. The urgency of this requirement is underscored when an agency is charged with administering a broad statutory mandate — such as we confront here — and when courts must by necessity defer to the agency judgment. In this ease, I face conflicting decisions of Administrative Law Judges, decisions which the Labor Board has chosen to affirm without opinion. These conflicting decisions exist against a background of barely reconcilable precedents and of a failure of the Labor Board to provide a reasoned basis for its decisions regarding the definition of “employee.”

The Court decides to remedy the situation by remanding the record for supplementation on the issue of the. inconsistency between Molloy and the case sub judice. I agree that the Board must develop a distinction between the cases before this Court may affirm its decision, but I do not think that a remand of the record alone is, on the facts of this case, a sufficient remedy for the Board’s failure to provide a reasoned decision of this case. This case in my view presents a classic example of where a diligent reviewing court could determine through a variety of factors that the agency had not given the problem a “hard look”, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). A remand of the record alone can produce only a post hoc rationalization of the inconsistency between Molloy and this case. Such post hoc rationalizations have been consistently held to be inadequate to justify an otherwise vulnerable decision. The reason of this rule is that an agency might simply search for an explanation, in this case a distinction, to satisfy the requirement of a reasoned decision, regardless of whether the agency would have been genuinely impressed with the explanation or distinction if the matter were properly considered in the first instance. The wisdom of this rule is particularly evident when the agency’s error is the failure to give a “hard look” in the first place. Indeed, post hoc rationalizations are hardly the instrument to develop the standards for decision which are so conspicuously lacking in this area. It is my understanding that the record should be remanded for supplementation only when there are minor factual confusions or conflicts within an agency decision. I know of no authority for the proposition that the record may be remanded for supplementation when the agency has failed to comply with the requirement of a reasoned decision. I would reverse the Board and remand for a thorough reconsideration of the doctrinal quicksand in this area.

      . On November 10, 1972, the Union requested that Santini discharge 13 owner-operators for not joining the Union and paying dues. Santini refused and another work stoppage occurred on November 20. On January 22, 1973, the Board’s Regional Director sought a preliminary injunction against the Union under section 10(7) of the Act, 29 U.S.C. § 160(1) (1970). The injunction was granted on March 16, 1973. Danielson v. Local 814, Teamsters, 355 F.Supp. 1293 (S.D.N.Y.1973).

      . Section 8(b)(4)(i), (ii)(A), (B), 29 U.S.C. § 158(b)(4)(i), (ii)(A), (B) (1970).

      . Section 8(e), 29 U.S.C. § 158(e) (1970).

      . See National Woodwork Mfg. Ass’n. v. N. L. R. B„ 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); Orange Belt Dist. Council No. 48 v. N. L. R. B., 117 U.S.App.D.C. 233, 328 F.2d 534 (1964).

      . See Local 1288, Retail Clerks v. N. L. R. B., 129 U.S.App.D.C. 92, 390 F.2d 858, 861-62 (1968); A. Duie Pyle, Inc. v. N. L. R. B„ 383 F.2d 772, 777-78 (3rd Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968); cf. Denver Bldg. & Constr. Trades Council v. N. L. R. B., 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951); Marriot Corp. v. N. L. R. B., 491 F.2d 367 (9th Cir.), cert. denied sub nom. International Ass’n of Machinists v. N. L. R. B., 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974); Local 710, Meat & Highway Drivers v. N. L. R. B., 118 U.S.App.D.C. 287, 335 F.2d 709 (1964); Local 5, Plumbers & Pipefitters v. N. L. R. B., 116 U.S.App.D.C. 100, 321 F.2d 366 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964); District No. 9, Machinists v. N. L. R. B.,114 U.S.App.D.C. 287, 315 F.2d 33, 36 (1962); Washington Oregon Shingle Weavers Dist. Council, 101 N.L.R.B. 1159 (1952), aff’d, 211 F.2d 149 (9th Cir. 1954). See also N. L. R. B. v. Local 825, Operating Eng’rs, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). Of course, if the owner-operators were “employees” (and thus presumably within the union’s jurisdiction and certification), then the union’s actions are permissible attempts to enforce a union security agreement on its unit employees. Absent state law to the contrary, union security agreements are permitted under present law subject to certain restrictions. NLRA §§ 8(a)(3), (b)(2), (5), 14(b), 29 U.S.C. §§ 158(a)(3), (b)(2), (5), 164(b) (1970). On the relationship of a finding of “independent contractor” status and a finding of a violation of the secondary boycott provisions of the NLRA, see Local 417, Carpet Layers v. N. L. R. B„ 151 U.S.App.D.C. 338, 467 F.2d 392, 399-401, 404-06 (1972).

      . The Administrative Law Judge in Santini Brothers, although cognizant of his colleague’s position in Molloy Brothers, did not attempt to distinguish the two cases.

      . See NLRB v. United Ins. Co. of America, 390 U.S. 254, 256 & n. 2, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971) and legislative history cited.

      . See Carnation Co. v. NLRB, 429 F.2d 1130, 1132 (9th Cir. 1970). For this reason I do not find Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) controlling.

      . Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971), citing Grace v. Magruder, 80 U.S.App.D.C. 53, 148 F.2d 679, 681 (1945); Restatement of Agency (Second) § 220(1), (2) (1957). See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 193 (6th Cir. 1972); News-Journal Co. v. NLRB, 447 F.2d 65, 68 (3d Cir. 1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); Frito-Lay, Inc. v. NLRB, 385 F.2d 180, 187 (7th Cir. 1967); NLRB v. A. S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964); Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697, 698-99 (5th Cir. 1964), cert. denied sub nom. Local 612, Teamsters v. NLRB, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965).
      While there can be no doubt that Congress intended this “right of control” test to apply, I am impressed by the suggestion of counsel for Local 814 that the better test is one which determines “employee” status on the basis of whether the contested workers are properly represented by the relevant union. This is, I take it, a test virtually identical to the test of whether certain workers belong in the jurisdiction of one union or are part of an appropriate bargaining unit which the union represents. See, e. g., NLRB v. Radio & Television Broadcast Eng’rs, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961); Mallinckrodt Chem. Works, 162 N.L.R.B. No. 48 (1966). Cf. NLRB v. Southern Seating Co., 468 F.2d 1345, 1347-48 & n. 8 (4th Cir. 1972) (distinction between a “supervisor” and an “employee”). The § 7 rights of the workers in dispute may be protected through Labor Board policy on “accretion” to existing units. See Local 455, Retail Clerks v. NLRB, 166 U.S.App.D.C. 422, at 425 & n. 2, 510 F.2d 802, 805 & n. 12 at 6 & n. 12 (1975).

      . See NLRB v. United Ins. Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968).

      . On the legal significance of these factors, see Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 708, 716-19, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1327-29 (1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1132 (9th Cir. 1970); Associated Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383, 1385-87 (9th Cir. 1969); National Van Lines, Inc. v. NLRB, 273 F.2d 402, 406-07 (7th Cir. 1960); Reisch Trucking & Transportation Co., 143 N.L.R.B. 953 (1963).

      . Under some, older agreements between Santini and the owner-operators, such as that with Marvin Baggett, Exhibits at 481, 484, and Thomas Wolfe, id. at 468, 471, the owner-operator was subject to termination for driving for another carrier. This provision has been dropped from the newer agreements executed with some drivers at or after the time of the unfair labor practices here in dispute, Exhibits at 38-43, as in the contract with Thomas Wolfe, id. at 450-67. However, even under the newer agreements covering part of Santini’s drivers the owner-operator is required to operate his own vehicle and is also required to notify Santini of any carrier business the owner-operator discovers and to permit Santini to have the right of first refusal of that business. Exhibits at 452-53. Furthermore, it seems inherently persuasive that an owner-operator would want to operate his own equipment and would consider himself bound to it. The Administrative Law Judge apparently found that the owner-operators, if they wished to work overtime, can drive for other carriers with Santini’s permission (one assumes as “moonlighting”). Joint App. at 21 n.14.

      . United and Santini have three different types of business arrangements variously called “permanent” lease; “master” lease and “peak” lease. Virtually all of Santini’s 24 owner-operators work on United jobs under one of these business arrangements. Local 814, Teamsters (Santini Bros.), 208 N.L.R.B. No. 22 (1974), Joint App. at 13 (opinion of ALJ). These lease arrangements all require Santini to provide personnel for United jobs who comply with all of United’s business rules. Exhibits at 648, 651. United promulgates a variety of rules through its owner’s manual which is reprinted in Exhibits at 789-948. One of the rules contained in the owner’s manual is that the driver must attend the United training school, if he is on a so-called “permanent” lease, as are 9-10 of Santini’s drivers, id. at 792. The older agreements between Santini and its owner-operators, many of which were still in effect at the time of the unfair labor practices, Exhibits at 38-43, expressly required the owner-operators to follow the rules in the United manual. Exhibits at 471, 484. The newer agreements eliminate this express provision, id. at 450-67, but the provisions in the contracts between Santini and United remain the same and it is reasonable to expect that United still expects to have drivers who comply with United rules. Apparently the practice is that if United is unhappy with any Santini drivers because of failure to live up to United’s expectations, the driver is simply taken off United business, cf. Local 814, Teamsters (Santini Bros.), supra, Joint App. at 27, but since virtually all of Santini’s owner-operators work on United jobs, one may assume either total compliance with United rules or termination by Santini of offending drivers under the newer agreements’ termination clause, Exhibits at 464 (termination at will of Santini on thirty days notice). The Administrative Law Judge made no findings on the effect of the owner’s manual or on the effect of the newer agreements on United’s right to enforce the provisions of the manual. There was testimony in the record that Santini has no record of distributing the United manual and no policy of enforcing it (although we may assume that Santini would affirmatively respond to a United complaint about a particular driver), but as is noted in note 13 infra, it is the right of control and not the actual exercise of the right which is central to the legal definition of “employee”. Absent further explanation from the Labor Board, I think it established that United through Santini has at least the right of control on the basis of the requirements of the owner’s manual.

      . The various governmental regulations promulgated by the ICC and the Department of Transportation relates to safety, accident reporting, vehicle inspection, use of drugs or alcohol, logging requirements, a carrier (Santini)-imposed exclusive lease on the owner-operator’s tractor cab and the shipper’s rates which define the owner-operator’s compensation. Santini, as the licensed carrier, is responsible for the performance of these duties and may not delegate its responsibility to the owner-operator. See Local 814, Teamsters (Santini Bros.), 208 N.L.R.B. No. 22 (1974), Joint App. at 25-26 (opinion of ALJ).

      . See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 194 (6th Cir. 1972). See also NLRB v. Pony Trucking, Inc., 486 F.2d 1039, 1040 (6th Cir. 1973); Aetna Freight Lines, Inc., 194 N.L. R.B. 740, 741 (1971) (Miller, Member, concurring).

      . 29 U.S.C. § 157 (1970) (“Employees shall also have the right to refrain from” collective bargaining). Cf. §§ 8(b)(1), 14(b), 29 U.S.C. §§ 158(b)(1), 164(b) (1970); International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); NLRB v. Exchange Parts, Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); Local 633, Teamsters v. NLRB, 166 U.S.App. D.C. 157, 509 F.2d 490, 493 (D.C.Cir. 1974). This § 7 right is most profoundly evident in the secondary boycott prohibition as that prohibition has developed over the years.

      . See S.Rep. No. 105, 80th Cong., 1st Sess. 5-7 and passim (1947). Numerous provisions in the newer agreements between Santini and the owner-operators state expressly an intention to avoid collective bargaining. Most obvious is the provision that states it is the intent of the contracting parties that the owner-operator is to be an independent contractor. Exhibits at 463; see id. at 450-67.

      . Local 814, Teamsters (Molloy Bros.), 208 N.L.R.B. No. 43 (1974) decided nine days after the Santini case.

      . It is the right of control and not the exercise of that right which is relevant to a finding of independent contractor status. See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); NLRB v. A.S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964). The Administrative Law Judge in the Santini case paid very little attention to the United owner’s manual whereas the Administrative Law Judge in Molloy found that the Allied owner’s manual was the source of a number of carrier restrictions over and above that required by the government. Local 814, Teamsters (Molloy Bros.), 208 N.L.R.B. No. 43 (1974), at 6-8 & n.7 (opinion of ALJ). In Molloy the Administrative Law Judge also relied on various Allied bulletins; there is evidence of various United bulletins in the record sub judice. Exhibits at 949-50, 977-79, 982-83, 988-99, 1007-15b. This seems to be the source of inconsistency.

      . Compare Reisch Trucking & Transportation Co., 143 N.L.R.B. 953 (1963); Fleet Transport Co., 196 N.L.R.B. 436 (1972); Conley Motor Express, Inc., 197 N.L.R.B. No. 57 (1972); Gold Metal Baking Co., 199 N.L.R.B. No. 132 (1972); Portage Transfer Co., 204 N.L.R.B. No. 117 (1973); George Transfer & Rigging Co., 208 N.L.R.B. No. 25 (1974) with Deaton, Inc., 187 N.L.R.B. 780 (1971); Aetna Freight Lines, Inc., 194 N.L.R.B. 740 (1971); Florida Texas Freight, Inc., 197 N.L.R.B. No. 158 (1972); Pony Trucking, Inc., 198 N.L.R.B. No. 59 (1972), aff'd, NLRB v. Pony Trucking, Inc., 486 F.2d 1039 (6th Cir. 1973). See also the various determinations of the Courts of Appeal, NLRB v. Cement Transport, Inc., 490 F.2d 1024 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322 (1971); Associated Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383 (9th Cir. 1969); Maxwell Co. v. NLRB, 414 F.2d 477 (6th Cir. 1969); Deaton Truck Lines, Inc. v. NLRB, 337 F.2d 697 (5th Cir. 1964), cert. denied sub nom. Local 612, Teamsters v. NLRB, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965); National Van Lines, Inc. v. NLRB, 273 F.2d 402 (7th Cir. 1960). Cases involving the status of distributors involve different problems and hence are distinguishable. See, e. g., NLRB v. Pepsi Cola Bottling Co. of Mansfield, 455 F.2d 1134 (6th Cir. 1972); News-Journal Co. v. NLRB, 447 F.2d 65 (3d Cir. 1971); Herald Co. v. NLRB, 444 F.2d 430 (2d Cir. 1971).

      . See NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) (Goldberg, J.); NLRB v. Gibson Products Co., 494 F.2d 762, 767 (5th Cir. 1974); May Department Stores Co. v. NLRB, 454 F.2d 148, 151-52 (9th Cir. 1972); Herbert Harvey, Inc. v. NLRB, 137 U.S.App.D.C. 282, 424 F.2d 770, 780 (1969); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); cf. Barrett Line, Inc. v. United States, 326 U.S. 179, 65 S.Ct. 1504, 89 L.Ed. 2128 (1945), discussed L. Jaffe, Judicial Review of Administrative Action 586-88 (1965); Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 454 F.2d 1018, 1026-27 (1971); Marco Sales Co. v. FTC, 453 F.2d I, 7 (2d Cir. 1971); Mesa Petroleum Co. v. FPC, 441 F.2d 182, 192 (5th Cir. 1971); Melody Music, Inc. v. FCC, 120 U.S.App.D.C. 241, 345 F.2d 730 (1965); City of Lawrence v. CAB, 343 F.2d 583 (1st Cir. 1965). See generally Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).

      . See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); cf. FPC v. Texaco, Inc., 417 U.S. 380, 397 (1974); NLRB v. Local 347, Food Store Employees, 417 U.S. 1, 9-10, 94 S.Ct. 2074, 40 L.Ed.2d 612 (1974).
      There is nothing in Local 441, Electrical Workers v. NLRB, 167 U.S.App.D.C. 53, 510 F.2d 1274 (1975) which is to the contrary. That case involved a remand because of a confusion in the Board’s handling of a conflict in testimony and the legal implications to be drawn therefrom. As such, a confusion in testimony, it was clearly proper to remand for supplementation of the record. The case sub judice, on the other hand, concerns a failure to supply a reasoned decision. Such failures may not be rectified by a remand of the record alone.


author: TAMM, Circuit Judge:

text:
    INTERNATIONAL ENGINEERING COMPANY, DIVISION OF A-T-O, INC. v. Elliott L. RICHARDSON, Secretary of Defense, et al., Appellants.
    No. 74-1192.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 24, 1975.
    Decided May 2, 1975.
    Rehearing and Rehearing En Banc Denied June 19, 1975.

      David M. Cohen, Atty., Dept, of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Stephen F. Eilperin, Atty., Dept, of Justice, were on the brief for appellants. Robert M. Werdig, Jr., Asst. U. S. Atty., also entered an appearance for appellants.
    Robert H. Turtle, Washington, D. C., with whom James M. McHale, Washington, D. C., was on the brief for appellee.

       Sitting by designation pursuant to 28 Ü.S.C. § 293(a).

   Opinion for the Court filed by Circuit Judge TAMM.

Before TAMM and LEVENTHAL, Circuit Judges, and MILLER, Judge, United States Court of Customs and Patent Appeals.

TAMM, Circuit Judge:

Appellant challenges the propriety of the district court’s issuance of a preliminary injunction against the United States enjoining it from distributing certain test reports submitted pursuant to a government contract because of the likelihood that the Air Force erroneously failed to recognize appellee International Engineering Company’s (IEC) proprietary interest in certain data contained in the reports. For the reasons stated below, we hold that the injunction was improper as the district court lacked subject-matter jurisdiction and order the injunction vacated and the case dismissed.

I

In February, 1968, appellee IEC submitted to the United States Air Force an unsolicited proposal concerning its privately developed long-range navigation (LORAN C/D) bomb/missile guidance system. On July 7, 1969, the parties contracted for construction of a breadboard model of the LORAN C/D system (referred to by the parties as “Unit A”), performance of certain laboratory and helicopter flight tests, and delivery to the Air Force of a final report on the tests. Specifically incorporated by reference as contract clauses were forty-four contract provisions set forth in the Armed Services Procurement Regulations (ASPR), 32 C.F.R. pts 1-30 (1974), including the “Rights in Technical Data” Clause (ASPR 7 — 104.9(a)) and the standard “disputes clause” (ASPR 7 — 103.12), establishing mechanisms for resolving contract disputes.

By the spring of 1970, IEC had developed a more compact LORAN C/D system. Thereafter, on October 27, 1970, the parties modified the contract to test the system with the new developments. IEC again agreed to construct a breadboard model of the new subsystem (referred to by the parties as “Unit B”) and to submit test reports.

In late March, 1971, the Air Force directed IEC to provide further information concerning the components and processes to help it evaluate the test results. IEC submitted the data, in an interim report, 71-05, and in its contractually-mandated Final Report 70-06-4. Both reports were marked with notice of “limited rights,” restricting the Air Force’s distribution rights to the Unit B data.

By letter of April 19, 1971, the Air Force contracting officer questioned the propriety of the restrictive legend (limited rights) on Final Report 70-06-4, referred appellee to the “Rights in Technical Data” clause of the contract, and requested a prompt response “to why the Government does not have the right to remove the legends in question.” A. 46. IEC responded on June 15, 1971 that Unit B had been “developed and built at contractor expense, and [had] been made available for this effort on a no charge loan basis.” IEC maintained that its contractual obligation to submit a final report “could have been met without inclusion of proprietary information” and that “[i]f the Air Force requires unlimited rights” in the report, IEC would revise the report by deleting the data. A. 48-49.

On June 30, 1971, the parties again negotiated a contract modification which required IEC to conduct further tests and submit test reports; on July 7th, the Air Force accepted Report 70 — 06-4. On October 15, 1971, appellee submitted Interim Report 71-07 and then on December 10, 1971, Report 71 — 09 as the concluding report under its contractual obligations; both reports contained limited rights notices covering the same information submitted in Report 70-06-4.

By letter on December 28, 1971, the contracting officer, again referring to the “Rights in Data” clause, notified IEC that Report 71 — 09, “even if found to be technically correct”, would not be accepted until appellee either removed or substantiated all proprietary markings. A. 50. Expressing surprise that the issue had resurfaced, IEC on January 5, 1972, reviewed the history of the parties’ course of dealing, asserted that Report 70-06-4 had been accepted with proprietary restrictions, offered to delete the data, and reiterated its belief that the restrictions were appropriate. A. 51 — 52.

The next official exchange occurred on June 5, 1972, when the Air Force again informed IEC that it had failed to substantiate its limited rights notices and that the Air Force intended to strike them and use the data with unlimited rights. A. 53-54. On June 26, 1972, representatives of both parties participated in a two-hour meeting on the matter; IEC was asked to provide further detail and written documentation so that its claim could be forwarded to higher headquarters. The Air Force agreed to treat the data with limited rights during the pendency of the dispute. Soon thereafter final payment was made on the contract.

Not having received any additional documentation by October, 1972, the contracting officer again notified IEC of the Air Force’s intention to utilize the data with unlimited rights. IEC immediately protested the report’s imminent release to the Director of the Defense Documentation Center and the Secretary of the Air Force. In December, 1972, IEC received assurances that the material would not be released until a decision was made on the “limited rights” question.

In January, 1973, the contracting officer’s technical and legal advisors briefed headquarters personnel of the Air Force Systems Command (AFSC) and United States Air Force (USAF). IEC’s counsel met with Counsel to the Secretary of the Air Force and representatives of AFSC and USAF. At the Secretary’s Counsel’s request, IEC submitted further written materials on February 8, 1973. A. 58-60. On March 16, 1973, the Air Force Chief of Staff authorized AFSC to make a final decision on the dispute after considering IEC’s February 8th submission. AFSC returned the matter to the contracting officer for final decision. That officer’s technical advisor concluded that the letter of February 8th contained no information relevant to the issue and recommended striking the limited rights notice. On May 9, 1973, IEC was so informed.

On May 10, 1973, IEC filed suit in district court for declaratory and injunctive relief and a temporary restraining order. IEC sought review of the contracting officer’s decision to strike the proprietary notice, characterizing it as agency action reviewable under section 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702 (1970). The Air Force contended that the dispute arose under the contract; that the officer’s decision did not constitute agency action; that the proper forum for the claim was either before the Armed Services Board of Contract Appeals or the Court of Claims; and that thus the district court lacked subject matter jurisdiction or the suit was barred by sovereign immunity.

In a Memorandum and Order filed July 10, 1973, the district court held that the decision of a contracting officer, acting pursuant to an ASPR provision incorporated into a contract, constituted agency action and that the APA served as a waiver of sovereign immunity. International Engineering Co. v. Richardson, 361 F.Supp. 818, 821-22 (D.D.C.1973). However, the judge believed that the record of the officer’s reasoning was insufficient to permit judicial review of the decision to strike the restrictive notice and remanded the case to the officer for a fuller exposition. Id. at 823 — 25. After receiving that statement, on October 24, 1973, the district court entered a preliminary injunction. International Engineering Co. v. Richardson, 367 F.Supp. 640 (D.D.C.1973). This appeal followed.

II

This suit raises the special problems of jurisdiction and sovereign immunity because in essence the United States is the defendant here. The general rule of sovereign immunity is that the United States cannot be sued without its consent. E. g., United States v. Sherwood, 312 U.S. 584- 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The sovereign may waive its immunity by statute, and such consent, if given, may be subject to any conditions which Congress sees fit to require. See, e. g., Sherwood v. United States, supra; Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972). On the one hand, .for contract actions against the United States, Congress, through passage of the Tucker Act, 28 U.S.C. §§ 1346(a), 1491 (1970), has consented to suit. For claims under $10,000, the Court of Claims and the district courts have concurrent jurisdiction; the Court of Claims has exclusive jurisdiction for claims over $10,000. Congress has, however, imposed conditions on its waiver of sovereign immunity. The Court of Claims has jurisdiction only to award damages, Glidden v. Zdanok, 370 U.S. 530, 577, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); it may neither grant declaratory, United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), nor injunctive relief, Glidden v. Zdanok, supra

On the other hand, we have held that Congress, in enacting the APA, made a more general waiver of sovereign immunity in section 702 whenever that section is applicable. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970). The district court, relying in large part on Scan-well, found jurisdiction in this case. In its first opinion, 361 F.Supp. at 821 — 23, the court concluded that IEC was “aggrieved” by agency action — the acts taken by the contracting officer pursuant to the Rights in Technical Data clause “which has the force of law in this Contract.” While conceding that Scanwell was not directly on point, the court-asserted that the primary concerns identified in that case — plaintiff’s interest in preventing economic injury and the public’s interest in preventing arbitrary or capricious action — were present here and-justified accepting jurisdiction. Finally, the court said that in exercising jurisdiction it was providing the only forum from which appellee could obtain injunctive relief as the Court of Claims and Armed Services Board of Contract Appeals could not grant such relief.

In its second decision, 367 F.Supp. 640, the court began from the premise that even if it possessed jurisdiction, the decision to grant judicial relief was discretionary. Id. at 647-48; see M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289 (1971). The court then concluded that relief was appropriate both to vindicate the interests identified earlier and because of the court’s doubt over the likelihood of the adequacy of a damage remedy in the Court of Claims. Recognizing that neither the only potential buyer of products relating to the data, the United States, nor IEC itself foresaw any practical value in the information (except as for what type of research not to do), the court opined it was “more important” that IEC received injunctive, rather than compensatory, relief. 367 F.Supp. at 649.

We must disagree with that analysis and conclusion. We believe that this case is a contract action falling squarely within the purview of the Tucker Act; therefore, the APA is inapplicable. As indicated below, several converging avenues of analysis yield this conclusion. First, reliance on interests identified in Scan well are inappropriate here. Moreover, we cannot accept the proposition that Congress intended to alter drastically the limited remedies and waiver of sovereign immunity embodied in the Tucker Act; adopting IEC’s position would result in the destruction of the Court of Claims by implication. Finally, under any circumstance, the APA is inapplicable by its own terms because of appellee’s adequate remedy before the Court of Claims.

We start with our firm belief that the gravamen of appellee’s complaint is a claim for breach of contract. Although the restrictive markings in question were affixed to reports submitted pursuant to the contract, appellee contends that the material at issue was not required to be included in its reports, Appellee’s Br. at 7, 47; resolution of that question is a matter of contract interpretation. The major controversy concerns the Government’s rights in the data under the contractually incorporated “Rights in Technical Data” clause. Settlement of that dispute requires interpretation of contract clauses to ascertain whether the material should be considered “design” or “form, fit, or function” data.

A reading of the district court opinions demonstrates its recognition of the contractual underpinnings of the proceedings. The district court applied as one of alternative standards of review “settled principles of contract law.” 367 F.Supp. at 649. The court also determined that review was appropriate because of the public interest in preventing arbitrary or capricious decision-making in the administration of government contracts, stating that the court “must undertake a limited review of the contracting officer’s decisions rendered pursuant to the Rights in Data clause to determine whether it is likely that he acted arbitrarily and without a rational basis.” Id. at 648, 650. Clearly that function cannot be performed without reference to and incorporation of the contract.

We think that this situation is indistinguishable from the one faced by this court in Aktiebolaget Bofors v. United States, 90 U.S.App.D.C. 92, 194 F.2d 145 (1951), involving a Swedish Corporation, Bofors, which owned a trade secret used to manufacture a superior anti-aircraft gun. Bofors entered into a government contract which granted the United States an exclusive license to make and use the guns. After the United States began to reveal the trade secrets to others and after unsuccessfully attempting to obtain equitable adjustments through informal negotiations, Bofors instituted three suits, including one for damages and another for a declaratory judgment. District Judge Holtzoff dismissed the actions for lack of jurisdiction. In affirming, Judge Miller, speaking for the division, found that the gist of the actions was breach of contract:

one who has lawfully acquired a trade secret may use it in any manner without liability unless he acquired it subject to a contractual limitation or restriction as to its use. In that event a licensee who uses the secret for purposes beyond the scope of the license granted by the owner is liable for breach of contract, but he commits no tort, because the only right of the owner which he thereby invades is one created by the agreement of disclosure. The owner could not maintain a suit against him for damages arising from unlicensed use without pleading and proving the contract. This being true, the gist of the owner’s action is the breach of the licensing agreement.

Id. at 148 (footnotes omitted). IEC’s complaint here is no different.

In Bofors, Judge Miller also held that the APA did not provide jurisdiction to hear either the damage or equity suit and that jurisdiction lay in the Court of Claims. Id. at 149 — 50. We do not rest our present ruling on stare decisis, however, because the Bofors decision preceded the extensive jurisprudence in this circuit sustaining the APA as a basis of jurisdiction, and thus it seems appropriate to analyze whether the district court fairly applied the APA and Scanwell to the claim of this government contractor. We think it did not.

First, clearly beyond peradventure, this case is not the type which falls within the rationale of our Scanwell holding. In Scanwell, we determined that a disappointed bidder on a government contract was a person aggrieved under the APA and had standing to seek a limited review of the contract award; we also held that where applicable the APA constituted a waiver of sovereign immunity. Although the sovereign immunity holding has relevance here, our direct concern in Scanwell was standing, “whether legislation regulating governmental activity inures to the benefit of those tangentially affected.” William F. Wilke, Inc. v. Department of Army, 485 F.2d 180, 183 (4th Cir. 1973). In contrast, while our focus in this case, as in Scan-well, is upon the same judicial review section of the APA, the question here is whether appellee has been aggrieved “by agency action;” our inquiry is to determine whether the decision by the contracting officer to strike IEC’s limited rights designation constituted agency action.

Clearly, our Scanwell decision does not directly resolve that question. Conceivably, the interests identified in Scanwell which dictated a finding of standing may be applicable by analogy here and mandate a finding of agency action. In fact, this type of analysis appears to be the foundation of the district court opinions, especially the reliance upon the identification of an equivalent public interest as.the one identified in Scanwell —the public interest in having contracts administered fairly and in preventing arbitrary and capricious decision-making by contracting officers. See 367 F.Supp. at 648; 361 F.Supp. at 823. However, we are extremely reluctant to give that factor the weight the district court attached to it in this situation. What has been identified unsurprisingly is the public’s interest in minimizing the number of actions taken by contracting officers which results in breaches of governmental contracts and which may necessitate the payment of compensatory damages by the government. This interest, of course, is present in every decision made by an officer pursuant to a contract to which the Tucker Act applies.

The breadth of' the district court’s holding poses the greatest difficulty: to grant jurisdiction here by a finding of agency action .would enable a district court to entertain a suit for injunctive relief each time a contracting officer makes a determination adverse to a private contracting party.

We simply do not think that such a result is mandated or that Congress intended to upset the carefully modulated waiver of sovereign immunity and grant of remedies for breach of contract embodied in the Tucker Act when it passed the APA. The Fifth Circuit, faced with this prospect in a case involving an injunction granted upon the basis of APA jurisdiction, refused to find such jurisdiction:

Since the United States by reason of its nature acts only through agents, it is hard to conceive of a claim falling no matter how squarely within the Tucker Act which could not -be urged to involve as well agency error subject to review under the APA. Little imagination is needed to foresee the consequences of a holding that such claims as this may be reviewed either in a court having power to grant equitable relief against the United States or in one having none. We refuse to believe that Congress intended, in enacting the APA, so to destroy the Court of Claims by implication.

Warner v. Cox, 487 F.2d 1301, 1306 (5th Cir. 1974). We join in that assessment. We think it is clear that Congress did not intend that every action taken by an employee of a federal agency be within the ambit of the APA judicial review section. We also believe that in light of the long-standing Tucker Act remedy and the traditionally long-recognized interest in preventing piecemeal disruption of the procurement process, e. g., M. Steinthal & Co. v. Seamans, supra, decisions made by contracting officers pursuant to contract clauses fall outside the contemplation of the statute.

Moreover, the APA itself states that judicial review is inappropriate where there exists some “other adequate remedy in a court.” 5 U.S.C. § 704 (1970). We have held that the availability of a remedy in the Court of Claims is such an adequate remedy. Mohawk Airlines, Inc. v. C.A.B., 117 U.S.App.D.C. 326, 329 F.2d 894 (1964). The district court, however, concluded that damages would be an inadequate remedy, because of the speculative nature of damages in light of the Government’s belief, as the only potential buyer, that the information is useless except for what not to do, and that injunctive relief would be appropriate in order to vindicate the public interest in proper contract administration. We have already concluded that this public interest factor should not be afforded the overriding weight that the district court gave to it. We further question whether damages are impossible to award. We see no barrier to the Court of Claims, if it decides that the Government has breached the contract, awarding IEC the fair market value of its data. See Aktiebolaget Bofors v. United States, 153 F.Supp. 397, 139 Ct.Cl. 642 (1957).

In sum, we find compelling reasons not to endorse the district court’s analysis, but to reaffirm the vitality of our Bofors holding. IEC’s claim is for breach of contract, and appellee should not be permitted to seek injunctive relief in the district court. Section 702 is inapplicable to this case and does not provide jurisdiction here. The case is reversed and remanded with instructions to vacate the injunction and dismiss the case for lack of subject matter jurisdiction.

So ordered.

      . IEC maintains that the acceptance of the report created a reasonable expectation that “the rights in data question had been resolved in [IEC’s] favor and that the Air Force would not object to the attachment of the ‘limited rights’ legend on data in subsequent reports describing IEC private-developed processes and components.” Appellee’s Br. at 19. See also IEC’s letter of Jan. 5, 1972, A. 51. However, Air Force officials involved later indicated: “it was decided that the contention over the proprietary markings was a separate entity from the technical acceptance. . ” Harshfield Dep. Ex. 1. That latter view is clearly correct; part of the Rights in Technical Data clause incorporated into the contract authorizes the Government to correct or cancel any marking “[n]otwithstanding any provision of this contract conerning . acceptance.” ASPR 7-104, 9(a)(d). Although there is no record evidence of any waiver or modification of that clause, the district court held that the Government was es-topped. International Engineering Co. v. Richardson, 367 F.Supp. 640, 656 n.12 (D.D.C.1973). We do not reach the correctness of this holding.

      . In his statement of reasons, the contracting officer noted that “[r]esolution of the data rights problems concerning Unit B is difficult, and may be impossible for the Government to resolve.” He emphasized that:
      The Rights in Technical Data clause, paragraph (d), places the burden of substantiating the propriety of restrictive legends on the contractor because his cooperation is needed to resolve this type of problem. All pertinent records are in his possession. Many important details are locked in his mind. It may be necessary for him to explain the significance of some record entries.
      A. 63.
      The officer relied upon the contract clause which granted IEC proprietary rights only if Unit B had been developed at private expense and opined that development includes the demonstration by testing that a prototype fulfills the developer’s objective. He pointed out that the Government regards even one percent Government funding as precluding a finding of development at private expense and as resulting in the Government obtaining 100 percent unlimited rights. He indicated that a substantial possibility existed that the final phases of development of Unit B — testing— were performed with contract funds. Under any circumstance, he reemphasized that IEC had failed to meet its contractually-allocated burden of substantiation. A. 62-76.

      . After reviewing its previous decision and holding that the APA provided subject-matter jurisdiction and waived sovereign immunity, the district court found that the interests identified in Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970) — IEC’s interest in preventing injury from any illegal, arbitrary and capricious action by the contracting officer and the public interest in having government contracts administered fairly — dictated a limited review. The district court concluded that the grant of a preliminary injunction was proper under the standards established by this court in Virginia Petroleum Jobbers Ass’n v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958): 1) appellee was likely to succeed on the merits because the contracting officer failed to provide minimal due process before striking the restrictive legends; 2) appellee would be irreparably injured without relief in that it would lose its competitive advantage; 3) the injunction would not substantially harm other interested persons; and 4) the public interest would be served. 367 F.Supp. at 649 — 57. In light of our conclusion on jurisdiction and sovereign immunity, infra, we do not reach the remainder of the district court’s decision.

      . The district court, when exercising concurrent jurisdiction, may only adjudicate claims which would also be maintainable in the Court of Claims. United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Hence, in such situations, the district court would have no authority to grant equitable relief. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973).

      . 5 U.S.C. § 702 (1970) provides:
      A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

      . This portion of the district court’s opinion is particularly confusing. In the text, reference is made to “ASPR 9-203(a)-(d) which has the force of law in this Contract. ” That section instructs contracting officers to include ASPR 7-104.9(a), the uniform Rights in Technical Data contract clause, in any appropriate contract. In the footnote, the court opines that there is no authority that “an ASPR once incorporated as a contract clause parts with all identity as a federal regulation governing certain acts of Contracting officers.” Presumably, the court is now discussing, as it has been all along, ASPR 7-104.9(a) (not ASPR 9-203), which was incorporated into the contract. In that same footnote, the court went on to note that several cases had suggested that the ASPR had the force of law and asserted its belief that IEC could invoke an ASPR “against an administrative determination contrary to the regulation’s terms.” 361 F.Supp. at 822 n.2.

      . Clearly, the dispute on its face involves the Government’s rights under the licensing agreement (contract) to IEC’s trade secret. Even assuming the validity of the district court’s finding of estoppel, see note 1 supra, the claim is still for breach of contract; under that theory IEC is alleging that the Government breached a licensing agreement which gave them the use of the data with limited rights.

      . Peoples v. Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561 (1970); Scan-well Laboratories, Inc. v. Shaffer, supra; see Pickus v. Board of Parole, 507 F.2d 1107 (D.C.Cir. 1974); Independent Broker-Dealers’ Trade Ass’n v. SEC, 142 U.S.App.D.C. 384, 442 F.2d 132 (1971).
      The district court was not apparently aware of the Bofors decision, for its opinions do not cite the case. Appellant relies upon it only as authority for a peripheral issue and actually’ only cites the district court opinion. See Appellant’s Br. at 21 n. 11. Although part of the Bofors analysis was undercut by the cases cited above, the obvious pertinence of the Bofors ruling should have been called to the attention of the courts.

      . Appellee points to Universal Fiberglass Corp. v. United States, 400 F.2d 926 (8th Cir. 1968), as support for a finding of jurisdiction, asserting that in that case the Government was able to enforce a contract in district court. We cannot accept the IEC’s argument that “Universal Fiberglass clearly establishes jurisdiction”; such an assertion indicates a complete lack of understanding of the real issues in this case — sovereign immunity and the extent of its waiver for contract actions.

      . Stripped of its plumage, this case is not too different than Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The dispute in Larson concerned interpretation of when payment was required upon a coal shipment. After receiving an unfavorable ruling from the War Assets Administration, plaintiff sued for equitable relief. The Court found that the suit was barred by sovereign immunity and noted:
      It is one thing to provide a method by which a citizen may be compensated for a wrong done to him by the Government. It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government from acting, or to compel it to act. . . . The Government . . cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract.

        Id at 704, 69 S.Ct. at 1468. Similarly, we see no persuasive reason why IEC should not be limited to the alternative remedies Congress has already provided.
      Finally, the bar of sovereign immunity prevents the district court from asserting jurisdiction through 28 U.S.C. § 1331. Id

      . IEC has a further alternative remedy — before the General Accounting Office. Assuming that the Government wrongfully discloses the information, it still constitutes the only market for a LORAN system. In that event, the Comptroller General has the power to cancel future procurements made to competitors who wrongfully have acquired the information; IEC would then become the sole supplier of the product.


author: PER CURIAM:

text:
    Maria C. BITTAR, Plaintiff-Appellant, v. AIR CANADA, a Corporation of Canada, Defendant-Appellee.
    No. 74-3873
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 30, 1975.
    Arthur Massey, Miami, Fla., for plaintiff-appellant.
    Herbert B. Mintz, Miami, Fla., Sarino R. Costanzo, Miami, Fla., for defendantappellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   PER CURIAM:

Plaintiff, Maria C. Bittar, brought this action against her former employer, Air Canada, alleging that she was discharged because of her age in violation of the Age Discrimination Act of 1967 (29 U.S. C.A. § 621 et seq.). After a prima facie showing of age discrimination by the plaintiff, the defendant-employer produced evidence of numerous instances of unsatisfactory job performance- on the part of the plaintiff. The district court, concluding that the plaintiff failed to prove her claim of age discrimination by a preponderance of the evidence, found in favor of defendant-employer, Air Canada.

On appeal plaintiff asserts that the trial court erroneously assessed the burden of proof between the parties. She contends that upon a prima facie showing of discrimination by the plaintiff-discriminatee, the burden of proof shifts to the defendant-employer to prove nondiscrimination by a preponderance of the evidence. This is specious. Upon such a prima facie showing by the plaintiff, there is a shift, but not in the burden of proof. Only the burden of going forward with the evidence shifts to the defendant-employer. E. g., Hodgson v. First Fed. Sav. & L. Ass’n, 455 F.2d 818 (5th Cir. 1972); Johnson v. University of Pittsburgh, 359 F.Supp. 1002 (W.D.Pa.1973); Ochoa v. Monsanto Co., 335 F.Supp. 53, 58-59 (S.D.Tex.1971), aff’d per curiam, 473 F.2d 318 (5th Cir. 1973). Once the defendant-employer comes forward with evidence that the plaintiff was discharged because of reasonable factors other than age, the plaintiff must still bear the burden of establishing a case of discrimination by a preponderance of the evidence. See, e. g., Ochoa v. Monsanto, supra; Barnes v. Lerner Shops of Texas, Inc., 323 F.Supp. 617 (S.D.Tex.1971). In Sabatino v. Curtiss Nat’l Bank, 446 F.2d 1046 (5th Cir. 1971) we stated: “[W]hen the party having the burden of proof makes a prima facie case, the burden of proof does not shift to the opposite party, but he [the opposite party] is only required to come forward with some evidence to rebut such prima facie case.” Id. at 1055.

Since the defendant-employer in the case at bar offered persuasive rebuttal evidence to overcome plaintiff’s prima facie case, the trial court properly utilized the preponderance of the evidence standard in weighing the sufficiency of the plaintiff’s proof.

Plaintiff’s remaining contentions are without merit.

Affirmed.