text:
    NATIONAL FACTORS, INC., and the Douglas Corporation, v. The UNITED STATES.
    No. 93-63.
    United States Court of Claims.
    March 20, 1974.
    Carlyle C. Ring, Jr., Washington, D. C., for plaintiff. James R. Worsley, Jr., Washington, D. C., atty. of record.
    Thomas E. Thomason, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.
    ON PLAINTIFF’S REQUEST FOR REVIEW OF THE TRIAL JUDGE’S ORDER
   PER CURIAM:

In this case the Philadelphia Quartermaster Depot awarded two contracts to the Douglas Corporation, now insolvent and whose claims have been assigned to plaintiff, National Factors, Inc., who financed its activities, for the manufacture of shirts (dated January 31, 1955, and March 17, 1955) from government-furnished cloth, and a contract dated February 1, 1955, for the manufacture of trousers from government-furnished cloth. On May 13, 1955, Douglas was awarded two contracts for the manufacture of ponchos and on June 30, 1955, it was awarded two more contracts for additional ponchos. Because of financial difficulties of Douglas caused by defective material furnished by the government under the trousers contract (as found by the Armed Services Board of Contract Appeals), it was terminated for the convenience of the government on September 6, 1955. At that time, due to such financial difficulties, work had not started on the shirt contracts. On December 15, 1955, the second shirt contract was terminated for default.

The first shirt contract was terminated for default on June 7, 1956. The four poncho contracts were terminated for the convenience of the government on March 25, 1957. Douglas appealed the settlement decision on the termination of the four poncho contracts to the Armed Services Board of Contract Appeals (Board) which finally, on February 19, 1970, awarded Douglas the sum of $282,430.30 plus interest expense of $109,295.26, all in the total sum of $391,725.56, which amount has been accepted by both Douglas and the Government with respect to costs allowable under the contract.

On March 22, 1963, while administrative proceedings were pending, Douglas filed this suit for damages for breach of contract of the four poncho contracts. The central issue and main thrust of the suit is that the government was guilty of bad faith in terminating the poncho contracts as shown by the actions of the contracting officer and other agents of the same agency for which he worked in awarding, administering, handling, and terminating not only the poncho contracts, but also the shirt and trousers contracts. The plaintiff alleges that the Board made many findings that show such bad faith as to all of the contracts not only during their existence, but also after they were terminated. These findings will not be described in detail in this opinion.

In the face of these allegations by plaintiff, the defendant filed a motion for summary judgment on October 14, 1970. In answer to this motion, the plaintiff fully pleaded and briefed the question of bad faith as being the main question in its breach of contract suit. The defendant responded with pleadings and a brief in which it argued that the poncho contracts were terminated for the convenience of the government and that the government had the right to terminate them for any reason whatsoever. The plaintiff contended that if the termination was due to bad faith, the government was liable for breach of contract damages. After oral argument by the parties, the court denied defendant’s motion for summary judgment, stating:

-x- * x [j]t is concluded that this case involves genuine issues of fact which cannot be resolved on a motion for summary judgment * * * and the case is remanded’to the trial commissioner for trial.

Thereafter, on September 12, 1971, the trial commissioner entered an order denying plaintiff’s request for admission into evidence the administrative decisions and records relating to the dispute properly before the Board under the termination clauses of the poncho contracts on which the breach claims are asserted in this court, except for the limited purpose of showing the history of the case. The plaintiff appealed on September 24, 1971, from this order of the trial commissioner. The court granted plaintiff’s request for review on November 29, 1971, stating:

* * * [I]t is concluded that factual findings, ultimate or subsidiary, of the Armed Services Board of Contract Appeals relevant both to the issues properly before the Board “under the contract” and to the issues in the proceedings in this court are binding upon the defendant (except to the extent the defendant can properly defeat them as unsupported by substantial evidence). See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 419-422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), and Air-A-Plane Corp. v. United States, 187 Ct.Cl. 269, 281-282, 408 F.2d 1030, 1036-1037 (1969), and
* * * [T]he matter is returned to the trial commissioner for further appropriate proceedings in accordance herewith.

Notwithstanding the foregoing orders of the court, which no doubt were misinterpreted by the trial judge (formerly trial commissioner), a pretrial order regarding finality of administrative findings (Rule 113) was entered by the trial judge on October 15, 1973. That order ruled out the admission into evidence of findings of the Board relative to the shirt and trousers contracts and all conduct of the employees of the government with reference thereto showing bad faith, and also all findings showing or indicating bad faith of such employees in connection with the poncho contracts. The order stated that such evidence and findings were not relevant to the issues before the Board. The order further provided that the only contracts before the Board were the poncho contracts and that they were terminated by the defendant for its own convenience, which it had a right to do for any reason that seemed appropriate to it.

The plaintiff has requested review of the pretrial order of the trial judge, saying that the heart of its suit for breach of contract of the poncho contracts in this case is the bad faith of the employees of the government that caused their termination and resulting damage to the plaintiff, and that it should be allowed to show such relevant bad faith by introducing into evidence the findings of the Board not only with respect to the poncho contracts but also in connection with the shirt and trousers contracts, both before and after termination. The plaintiff also contends that such findings should be final and binding on the defendant.

We have concluded after oral argument that the plaintiff’s request for review should be and the same is hereby granted. The case is returned to the trial judge with instructions to allow plaintiff to introduce into evidence all findings of the Board that show or tend to prove either directly, indirectly, or circumstantially, bad faith on the part of the same contracting officer or officers or other employees of the same government agency in their handling, administering, and terminating the shirt and trousers contracts and the poncho contracts at any time during their existence and also acts of such government employees occurring after the termination of the poncho contracts. Such findings shall be final and binding on the defendant unless it can show they are not supported by substantial evidence. The plantiff may also introduce other available evidence, if any exists, of bad faith on the part of such government employees, in addition to the findings, if any, of the Board in this regard. We have concluded further that inasmuch as the main issue in plaintiff’s breach of contract suit before us is the alleged bad faith of the government and its employees, the findings of the Board and other evidence bearing on this issue are relevant and may be introduced into the record at the trial of this case by the plaintiff, notwithstanding the fact that the contracts contained a termination for convenience clause in favor of the government. The termination of a contract for the convenience of the government is valid only in the absence of bad faith or a clear abuse of discretion. See Commercial Cable Co. v. United States, 170 Ct.Cl. 813, 821 (1965) and John Reiner & Co. v. United States, 163 Ct.Cl. 381, 390, 325 F.2d 438, 442 (1963), cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964). In the instant case, the plaintiff is entitled to introduce evidence showing bad faith or a clear abuse of discretion in connection with the termination of the poncho contracts, in accordance with this opinion, if it is able to do so.

The case is returned to the trial judge for trial pursuant to this opinion.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Michael WOLFSON v. The UNITED STATES.
    No. 48-70.
    United States Court of Claims.
    March 20, 1974.

      Adley M. Shulman, Beverly Hills, Cal., atty. of record, for plaintiff.
    Rose E. Adewale-Mendes, Washington, D. C., with whom was Acting Asst. Atty. Gen., Irving Jaffe, for defendant. Lawrence S. Smith, Washington, D. C., of counsel.
    Before DAVIS, SKELTON and NICHOLS, Judges.
   OPINION

PER CURIAM:

Plaintiff brings this action pursuant to the Tucker Act, 28 U.S.C. § 1491; Executive Order No. 10865, dated February 20, 1960, as amended by Executive Order No. 10909, dated Jan. 17, 1961; and Department of Defense (DOD) Directive No. 5220.6, dated December 7, 1966, 31 Fed.Reg. 16188, codified at 32 C.F.R. § 155.9 (1973). He seeks reimbursement for alleged loss of earnings resulting from being discharged in 1950 by his employer, a Government contractor, because of defendant’s denial of authorization for plaintiff to have access to Government classified material, followed by a grant to him some 18 years later of such access authorization (commonly referred to as a “security clearance”).

The instant proceeding was limited to the issues of law and fact relating to (1) the right of plaintiff to recover; and, if so, (2) the question of whether plaintiff is entitled to anything inasmuch as he concedes that his earnings during the interim period between the time of defendant’s denial of access authorization and plaintiff’s discharge from his employment by reason thereof, and the time defendant granted Such authorization, greatly exceeded the amount plaintiff would have earned in the position he held at the time of such denial and discharge, it being understood that plaintiff contends that his interim net earnings did not exceed those properly recoverable by him.

In February 1950 plaintiff, while employed by Armour Research Foundation (“Armour”) a Government contractor, was denied a security clearance to work on “top-secret, secret, confidential, or restricted” Government contracts by the Army-Navy-Air Force Personnel Security Board (PSB). While Armour was notified that the denial of security clearance “ * * * [was] not to imply that the Department of the Army desire[d] the dismissal of * * * [plaintiff],” he was, in fact, discharged 4 days later.

Plaintiff requested the Industrial Employment Review Board (IERB) to issue a “statement of charges” upon which the PSB based its decision, and to permit a personal appearance so that he could respond thereto. In May 1950 the IERB informed him that the PSB had based its decision on the fact that investigative reports indicated:

a. That you are a member of and sympathetically espouse the principles of The Young Progressives of America, a Communist dominated and Communist Front Organization.
b. That you have close and sympathetic associations with known Communist Party members and Communist Party sympathizers.

The hearing requested by plaintiff was held on October 10, 1950, and the IERB confirmed the denial of clearance on November 15, 1950. This denial, pursuant to Department of the Army (DA) Memo 380-5-10, dated April 2, 1948, as amended August 9, 1948, was a final decision from which no administrative appeal was then possible.

Shortly after his employment with Armour was terminated, plaintiff obtained work with the Revere Camera Company, Chicago, Illinois, as a lens polisher. He began work at this new position on April 7, 1950, at the same hourly rate of $1.50 previously earned at Armour.

Plaintiff made no further inquiries concerning his security status until 1958. Sometime prior to September 15th of that year, plaintiff was briefly employed by the Nortronics Division of Northrop Aircraft, Inc., Hawthorn, California, but he was discharged when it was discovered that he lacked a security clearance and that it would take 6 to 18 months to secure one. This episode prompted plaintiff to send a letter dated September 26, 1958, to the Director, Office of Industrial Personnel Security Review, Department of Defense, Washington, D. C., in which he requested review of the 1950 final denial of clearance. By a reply letter, dated October 6, 1958, plaintiff was advised by said office that the then current regulation, DOD Directive No. 5220.6, dated February 2, 1955 (sometimes referred to as the 1955 Directive), a copy of which was enclosed for plaintiff’s information, provided for reconsideration of prior decisions of the IERB only on the grounds of newly discovered evidence or for other good cause shown. Plaintiff was informed that his letter was not considered to contain any newly discovered evidence or to constitute good cause for reopening his case; therefore, it was suggested that he submit a statement under oath commenting directly on the aforestated reasons given for the denial of clearance, and also written statements from others commenting on his suitability for access to classified information. Plaintiff did not respond to these suggestions and took no further action until March 1963.

On March 5, 1963, plaintiff wrote to the Office of Inspector, Naval Material, Industrial Security Division (INSMAT), Los Angeles, California, in an apparent effort to have a new security clearance application processed “as quickly as possible.” Without waiting for a reply from INSMAT, however, plaintiff sent a letter dated April 15, 1963, to the Office of Industrial Personnel Access Authorization Review (OIPAAR), Department of Defense, Washington, D. C., requesting reconsideration of his entire case on the basis of the regulation then currently in force. On April 22, 1963, the OIPAAR acknowledged plaintiff’s April 15, 1963 request for “reconsideration of the prior decision of the Industrial Employment Review, Board,” explained to him the proper procedure for obtaining such reconsideration, and transmitted therewith a copy of the then applicable regulation, DOD Directive No. 5220.6, dated July 28, 1960, 32 C.F.R. §§ 155.1-155.5 (1960) (the 1960 Directive). Section V, paragraph B., 1, entitled “RECONSIDERATION OF PRIOR DECISIONS,” of said Directive read in pertinent part:

Decisions rendered under any industrial personnel review program prior to the effective date of this Regulation which denied or revoked an access authorization may be reconsidered by such boards as the Director deems appropriate * * * after a finding by the appropriate board that there is newly discovered evidence or that other good cause has been shown. * * *

Pursuant to the last above-mentioned directive, plaintiff’s attorney wrote to the OIPAAR on July 22, 1963, “for the purpose of obtaining reconsideration of a previous denial of access authorization that occurred in 1950.” This request was accompanied by an affidavit executed by plaintiff, as well as affidavits of three other persons. In a reply letter dated August 14, 1963, the OIPAAR advised plaintiff’s attorney that the Industrial Personnel Access Authorization Screening Board (IPAASB) had reviewed his letter and the documents attached thereto, and determined that good cause had been shown for reconsideration of plaintiff’s casé; that accordingly, the case had been reopened; that it would be processed after plaintiff completed and submitted an enclosed blank Personnel Security questionnaire and a full background investigation of him had been completed; and that, thereafter, the case would be referred to the Screening Board again for review and decision as to whether the granting to plaintiff of access to classified defense information at the Secret or Confidential levels would or would not be clearly consistent with the national interest.

Following an investigation conducted by the Navy, the IPAASB reviewed plaintiff’s case and determined that plaintiff’s access to information classified “Secret” was not warranted. By letter dated December 29, 1965, the Deputy Assistant Secretary of Defense, Security Policy, notified plaintiff of the adverse decision rendered by the IPAASB, and furnished plaintiff with a “Statement of Reasons” forming the basis for the Board’s action. This statement did not deal with plaintiff’s alleged espousal of Communist principles or his alleged association with known Communists. Rather, the decision was based upon a finding that plaintiff was neither “reliable” nor “trustworthy.” In particular, the Board found that plaintiff, contrary to his assertions, had not severed all connection with organizations that could be called Communist or Communist dominated and had, over a period of years, made false statements concerning his place of birth. The letter went on to say, inter alia, that the Board’s action was not final in that he could file an answer to the Statement of Reasons within a certain period of time and that upon doing so, he was entitled to appear before a hearing board, with or without counsel, for the purpose of supporting his eligibility for an access authorization and to present evidence on his own behalf.

On February 22, 1966, plaintiff responded to the Statement of Reasons and requested a hearing before a Field Board. Pursuant to this request, plaintiff’s case was transferred to the Los Angeles Industrial Personnel Access Authorization Field Board, and thereafter a hearing was held on October 18 and 19, and November 8, 1966, before Examiner Joseph Sacks, Western Field Office, Industrial Security Clearance Review Office, Department of Defense. On October 20, 1967, said Examiner rendered a detailed “Determination” in which he set forth inter alia, Findings of Fact, Conclusions, and the following “Determination” :

It is determined that it is not clearly consistent with the national interest to grant Applicant [plaintiff] security clearance at any level.

On October 23, 1967, plaintiff appealed from the Examiner’s determination to the Appeal Board, Industrial Security Clearance Review Office. Following a hearing on December 18, 1967, at which plaintiff appeared, by counsel, the latter was advised in a letter sent to him on April 11, 1968, by the Director, Security Policy Office of the Secretary of Defense, Washington, D. C., that “ * * * the Appeal Board has determined that it is clearly consistent with the national interest to grant clearance at the Secret level for * * * [plaintiff].” The final decision of the Appeal Board was supported by a detailed Memorandum of Reasons dated February 21, 1968, and signed by all three members of the Board, in which the Board reversed the Examiner’s determination of October 20, 1967; dealt with each allegation contained in the December 1965 “Statement of Reasons”; and, after disposing of each one in plaintiff’s favor, concluded that there was nothing in the record to indicate “that the life of the * * * [plaintiff] is one inconsistent with reliability and trustworthiness.” The Board stated in pertinent part:

Although this ease is proeedurally termed a reconsideration case and thus relates" back to the 1950 denial of security clearance, the central issue is, in fact, whether in the face of the allegations of the December 29, 1965 Statement of Reasons it is consistent with the national interest to grant applicant security clearance at the level of Secret. The 1950 denial of security clearance is not before us, other than as a recorded fact.

Reimbursement for lost earnings is authorized by Section X of DOD Directive 5220.6, dated December 7, 1966, supra (the 1966 Directive), and it is settled that recovery can be had only under the terms of the regulation. See Kanarek v. United States, 161 Ct.Cl. 37, 314 F.2d 802 (1963), cert. denied 379 U.S. 838, 85 S.Ct. 74, 13 L.Ed.2d 45 (1964); Dupree v. United States, 136 Ct.Cl. 57, 141 F.Supp. 773 (1956); Williamson v. United States, 166 Ct.Cl. 239 (1964).

As noted in the opening paragraph of this opinion, plaintiff relies solely on the 1966 Directive supra, to the exclusion of earlier ones, and defendant agrees with plaintiff that said Directive is applicable here. Compare: Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Margolin v. United States, 175 Ct.Cl. 768 (1966); and Rabineau v. United States, 182 Ct.Cl. 371 (1968).

Section X of the 1966 Directive provides in pertinent part:

REIMBURSEMENT FOR LOSS OF EARNINGS
A. An applicant may be reimbursed for a loss of earnings resulting directly from * * * denial of his clearance provided (1) a final determination thereafter is made that it is clearly consistent with the national interest to grant him a clearance for access to classified information at least equal to that which was * * * denied, and (2) it is found to be 'fair and equitable for the Department of Defense to reimburse the applicant for all or a part of the loss of earnings.
B. It shall be considered fair and equitable, except as hereinafter provided, to reimburse any applicant who has suffered loss of earnings as a result of * * * denial of clearance when that clearance is, in the course of the timely exhaustion of remedies by the applicant, granted * * *. A claim for reimbursement may be denied when:
1. The subsequent determination to grant the clearance depends upon material facts withheld by the applicant, or where circumstances have changed since the * * * denial and the grant * * * of the clearance; or
2. The * * * denial follows the applicant’s failure to comply with procedural requirements.
******
E. When a case has been reopened under Section XI., below, and thereupon a determination favorable to the applicant is made, a request for reimbursement may be considered only where (1) the applicant exhausted all of the administrative remedies available in the original proceeding (2) the applicant made a full and complete disclosure during the original proceeding, and (3) the determination to grant * * * the clearance is not based upon circumstances occurring after the final denial * * *.
F. The amount of reimbursement shall not exceed the difference between the earnings of the applicant at the time of the * * * denial, * * * and the interim net earnings. No reimbursement shall be allowed for any period of undue delay resulting from the applicant’s acts or failure to act. * * *
******

Plaintiff contends that he is entitled to recover alleged interim loss of earnings for the period March 13, 1950 (the date of his discharge from Armour) through December 13, 1968 (plaintiff’s main claim), but he also submitted alternative claims for the following periods: (1) September 15, 1958 through December 31, 1968; and (2) October 1964 through December 31, 1968 (alternative claims 1 and 2, respectively).

Before discussing the merits of plaintiff’s claims, it should be noted at the threshold that although he was finally granted a security clearance on April 11, 1968, each of his claims includes what he terms a “reasonable period” thereafter within which he assertedly was unable to obtain new employment. As to this position of plaintiff, the controlling regulation, DOD Directive 5220.6, Section X, paragraph F, partly quoted above, in clear and unequivocal language limits the amount of the reimbursement payable to an applicant to the difference between his earnings at the time of denial of clearance and his “interim” net earnings. Used in such context, this court has interpreted the term “interim” as meaning the period between the day after discharge from employment to the date when clearance is granted. See Margolin v. United States, supra, 175 Ct.Cl. at 774, citing Greene v. United States, supra, 376 U.S. at 161, n. 16, 84 S.Ct. at 615. Therefore, assuming arguendo that plaintiff is entitled to recover, no recovery would be possible for the period subsequent to April 11, 1968.

As to plaintiff’s main claim, i.e., for the period March 13, 1950 through April 11, 1968, defendant contends, inter alia, that plaintiff’s alleged losses did not result directly from the denial of security clearance in 1950. This contention has no validity. With respect to this initial denial by the Personnel Security Board in 1950, it is clear that plaintiff’s employment with Armour ended as a direct result of that determination. Plaintiff was terminated 4 days after his employer was notified of the PSB decision; the cause and effect relation-, ship of the two events is indisputable.

Defendant also contends that' there can be no recovery unless the grant or restoration of clearance occurred in the course of the timely exhaustion of remedies by the applicant and argues that plaintiff’s inaction between 1950 and 1958 and again between 1958 and 1963 bars recovery. The Government’s argument is sound in large part but it is concluded that these circumstances, standing alone, are insufficient to extinguish all of plaintiff’s rights under the regulation.

With respect to the first interval of time, March 1950 to September 1958, it must be kept in mind that no avenue of appeal was available to plaintiff until the 1955 Directive became effective in April of that year. See 32 C.F.R. § 67.1-67.5 (1955). Therefore, plaintiff’s failure to seek review of his case between March 1950 and April 1955 cannot work to his detriment. However, the 40-month delay between April 1955 and September 1958, and the 54-month delay from September 1958 to March 1963 are clearly plaintiff’s responsibility.

The 1955 Directive, which provided for reconsideration of prior decisions of the IERB, was duly published in 20 Fed.Reg. 1553 ff., March 15, 1955; and plaintiff must be charged with constructive notice thereof. It is well settled that when regulations are published in the Federal Register they give legal notice of their contents to all who may be affected thereby. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); Federal Register Act of 1935, 49 Stat. 500, 502, 44 U.S.C. § 1507. This court has recognized this principle on several occasions. See, e.g., Coat Corp. of America v. United States, 123 Ct.Cl. 176, 196, 105 F.Supp. 832, 834 (1952); Lynsky v. United States, 130 Ct.Cl. 149, 153, 126 F.Supp. 453, 456 (1954).

As mentioned earlier, after plaintiff wrote to the Office of Industrial Personnel Security Review in September 1958, he was provided with a copy of the 1955 Directive and instructed to follow certain procedures if he desired reconsideration. Plaintiff did not respond to the Government’s suggestions and, in fact, took no further action until 1963. Attention has not been called to any persuasive evidence that plaintiff’s inaction was justified.

Upon the facts of this particular case, “timely” must be held to mean an amount of time less than that consumed by plaintiff’s delays. See, 41A Words and Phrases 346, citing In re Rumsey Mfg. Corp., 9 F.R.D. 93 (W.D.N.Y.), modified sub nom. McAvoy v. United States, 178 F.2d 353 (C.A. 2 1949). See also Clark v. Sandusky, 205 F.2d 915, 918 (7th Cir. 1953); Chemical Bank New York Trust Co. v. Steamship Westhampton, 268 F.Supp. 169 (D.Md.1967). Note is taken of the language of the Supreme Court that directives similar to the one applicable here have been “equitably designed to compensate employees whose security clearance has been improperly or wrongly denied,” Greene v. United States, supra, 376 U.S. at 161, 84 S.Ct. at 622, 11 L.Ed.2d 576; and it is not open to dispute to say that regulations of like purpose are generally interpreted in favor of the intended beneficiary. Piccone v. United States, 186 Ct.Cl. 752, 407 F.2d 866 (1969). However, to hold that plaintiff’s delays here were excusable, or that he has satisfied the requirement of “timely exhaustion of remedies,” would distort the intent and ignore the limitations of the regulation.

The foregoing, however, does not extinguish plaintiff’s total claim since, as previously noted, Section X, paragraph F, of the 1966 Directive, supra, controlling here stated:

* * * No reimbursement shall be allowed for any period of undue delay resulting from the applicant’s acts or failure to act. * * *

Thus the regulation specifically precludes recovery for periods of undue delay, but by implication indicates that recovery is possible for the periods during which a plaintiff diligently pursues his administrative remedies.

However, plaintiff’s entire claim (including the alternative versions) must fail because it is undisputed that his interim earnings exceeded the amount he would have earned in the position held by him with Armour at the time of defendant’s original denial of access authorization and plaintiff’s discharge by his employer in 1950.

On this issue, i.e., the earnings properly recoverable, plaintiff argues that Section X, paragraph F, of the 1966 Directive, supra, must be read expansively; and he urges that notice be taken of the differences in wording between said edition of the Directive and its predecessors. Section V, paragraph 26 — “Monetary Restitution” — of the 1955 Directive (32 C.F.R. § 67.5-4 (1955)) stated that the amount of reimbursement

* * * shall not exceed the difference between the amount the contractor employee would have earned at the rate he was receiving on the date of suspension and the amount of his interim net earnings. * * * [Emphasis added.]

On the other hand, as previously noted, Section X, paragraph F, of the 1966 Directive, supra, provides:

The amount of reimbursement shall not exceed the difference between the earnings of the applicant at the time of the suspension, revocation, or denial, whichever is earlier, and the interim net earnings. * * * [Emphasis added.]

Plaintiff argues that the phrase “earnings of the applicant” contained in the 1966 Directive must include earnings which he was reasonably certain to receive but for the denial, stating that “[i]nherent in, and a part of, the concept of a man’s earnings are all of the potentialities with which his skill, experience and industry endow that concept.”

In Kanarek, supra, it was assumed by the court and both parties that under the regulation the plaintiff therein was not entitled to a sum representing: (1) “damages suffered because of lost merit raises and general increases”; (2) “damages based on a linear increase in earning power”; or (3) “damages occasioned by loss of employment opportunities.” 161 Ct.Cl. at 39, 314 F.2d at 803.

Plaintiff attempts to distinguish Kan-arek by pointing out that it was decided under the 1955 Directive which included the “restrictive language regarding rates of earnings”; whereas, the present claim is pursuant to the 1966 Directive. Plaintiff has not called attention to anything which supports his position that the subtle change in language between the two Directives discussed above was designed to alter the measure of recovery. We consider it highly improbable that this very slight modification in wording was intended to have any such important effect. It is our view, rather, that both in 1955 and in 1966 the Defense Department was incorporating a position comparable to that prevailing as to recovery, by a reinstated federal employee, of back pay under the back pay statute (prior to its amendment in March 1966, 80 Stat. 94). See 5 U.S.C. § 652b (1964), deriving from Pub.L. 80-623, 62 Stat. 354 (Act of June 10, 1948). This court read that legislation as precluding the allowance of in-grade and statutory salary increases. See Paroczay v. United States, 177 Ct.Cl. 754, 758, 369 F.2d 720, 721 (1966). A fortiori, promotions were also excluded. In 1966, Congress in express and detailed terms, changed this aspect of the Back Pay Act, but the Defense Department did not choose to follow suit in its 1966 Directive.

Plaintiff urges the analogy of veterans’ reemployment rights under the selective service legislation (§ 8 of the Selective Training and Service Act of 1940, 54 Stat. 885, 890, as amended; § 9 of the Universal Military Training and Service Act of 1948, 62 Stat. 604, 614, as amended, 50 U.S.C. App. § 459 (1964 ed.)). Those statutes are explicit in requiring that the returning veteran be treated for pay, status, and seniority purposes as if he had remained in his employment continuously. See Accardi v. Pennsylvania R. R., 383 U.S. 225, 228-230, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966). For this reason it is very far from clear that the claimed analogy to the 1966 Directive is apt. But in any event we are of the view that plaintiff’s offer of proof on the issue of damages (see footnote 1, supra) does not even meet the standard of relative and reasonable certainty required in veterans’ reemployment cases by Tilton v. Missouri Pacific R.R., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), Brooks v. Missouri Pacific R.R., 376 U.S. 182, 84 S.Ct. 578, 11 L.Ed.2d 599 (1964), and McKinney v. Missouri-Kansas-Texas R.R., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958). Plaintiff wants to recover for lost opportunities and promotions under a number of different positions which he now asserts he would have obtained if he had had security clearance. The offer is very speculative. There are too many contingencies in the proffered chain of events, most of the contingencies are quite problematical, the exercise of discretion by the actual and potential employers would necessarily be large both in hiring and in upgrading pay, and the plaintiff’s performance in the various jobs he says he would have gotten is of course quite uncertain. This proffer is too riddled with doubts to persuade, even prima facie, that plaintiff would, in reasonable probability, have obtained the positions he lists and would have made the sums he says he would have earned if his security clearance had not been lifted. Even if we were to accept the selective service standard as applicable here — which we do not — a trial would not be warranted because of the overly speculative nature of plaintiff’s offer of proof.

On these grounds, we hold that plaintiff is not entitled to recover and that his petition must be dismissed.

CONCLUSION OF LAW

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

       This opinion is based upon the opinion of Trial Judge Franklin M. Stone (since retired), with modifications and additions. The court adopts the trial judge’s findings, with minor modifications, but they are not being printed.

      . la accordance with the expressed desire of both parties, a modified separation of the liability and damages issues procedure was followed in this proceeding in that plaintiff was allowed to submit, for inclusion in the record, certain contentions of fact showing the nature of the proof he would offer on the issue of damages in a proceeding to be held later in the event the determination on the aforestated liability issues should be favorable to him, subject to the understanding that defendant does not admit or agree with any of plaintiff’s said factual contentions and defendant may demand proof thereof; and plaintiff also was granted permission to include in his legal brief, argument directed to the question of the proper measure of damages.

      . The OIPAAR reference to said IERB decision must be an allusion to the November 15, 1950 decision of that Board since that was the date of the only action taken by it with respect to plaintiff.


author: NICHOLS, Judge.

text:
    HILLS TRANSPORTATION COMPANY v. The UNITED STATES.
    No. 336-72.
    United States Court of Claims.
    March 20, 1974.

      Curtis M. Caton, San Francisco, Cal., attorney of record for plaintiff, and Robert E. Borton, Sausalito, Cal., for plaintiff.
    Paul A. Zoss, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before DAVIS, SKELTON and NICHOLS, Judges.
    ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT
   NICHOLS, Judge.

This case is before the court on cross motions for summary judgment. There is no fact issue requiring trial. The plaintiff is a California corporation in the trucking business. In 1952 the Post Office Department designated plaintiff as “messenger” for conveyance of mails on Route No. 0432, between the Post Office and A & N Docks at Oakland Inner Harbor, California. In 1958 it designated plaintiff, likewise, as “messenger” for Route No. 0189, between Oakland Docks (“A & N”) and Oakland Pier.. Such designations are a kind of informal contracting peculiar to the Post Office, and remain in effect for an indefinite period, but are terminable at the will of either party. The above designations remained in effect during the times pertinent to this litigation, though they have been amended from time to time. The controversy here is over the right of the defendant to a retroactive price reduction because of its belief that part of the service contracted for in an amendment to each designation was not being performed.

By Act of September 1, 1954, Pub.L. 763, 83d Cong., 2d Sess., the Congress added to the Act authorizing the employment of mail messengers in the postal service (then 39 U.S.C. § 578) a new provision reading:

******
The Postmaster General may, in his discretion and under such regulations as he may prescribe, readjust the compensation of the holder of any contract for the performance of mail-messenger service on account of increased or decreased costs occasioned by changed conditions which could not reasonably have been anticipated at the time such contract was made.

The 1964 recodified 39 U.S.C. § 6403 authorized “informal agreements for mail messenger service without term” and the above quoted language from Pub.L. 763, swpra, was placed in § 6423(b), but without the provision for regulations, which was dropped without change of meaning in view of § 501.

A Congressional conference report explains this provision as intended to relieve the Postmaster General from having to cancel and readvertise in case changes in the cost of service indicated the fairness of a change in the rate of compensation. U.S.Code Congressional and Adminstrative News, p. 3861 (1954).

Both parties agree that the regulations issued pursuant to the above authority are found in successive editions of the Post Office or Postal Manual, and before 1960 did not provide that adjustments could only be made with the consent of the contractor. By Transportation Transmittal Letter 41, of December 23, 1960, such a provision was added to the Manual, § 526.1, and has remained in effect since. See also 26 Fed.Reg. 11636-11637 (1961).

By orders on different dates in 1962, defendant allowed to plaintiff an additional payment of 960 per container for “handling of full conex containers”. The orders specifically refer to 39 U.S.C. § 6423(b) as their authority for issuance. The record shows that these payments were asked for and ordered to be made because plaintiff persuaded the postal authorities it was expending additional time and effort at military piers because plaintiff’s drivers had to obtain defendant’s forklifts and operate them themselves to remove the conex containers (big shipping vans) from plaintiff’s trucks. The parties have been diligent in developing the facts as to the genesis of these orders. Defendant says they were intended to provide compensation for the physical labor of plaintiff’s employees, as if “handling” read “man handling”. Plaintiff says they were to provide for expenditure of time as well as effort, and that “handling” in general means all operations plaintiff performed respecting conex containers. In either case, it was something that had to be done to deliver the conexes, as the contracts already required. We can assume, arguendo, that defendant is right, and do so in the decision that follows.

In 1966 plaintiff ceased operating forklifts for this purpose at military piers, the duties having been taken over by military personnel. It has not been established to what extent, if at all, this reduced the time spent by plaintiff’s drivers and trucks at the piers. The officials of the Post Office Department learned of the change in 1968, stopped paying the 960 premium, and by letter dated January 22, 1969, notified plaintiff it was retroactively assessed an overpayment of $28,443.84. Plaintiff paid it under protest.. Plaintiff claims the amount with interest. The Post Office Department Board of Contract Appeals held it had no jurisdiction of the dispute because the contracts had no “disputes” clause. The Comptroller General has rejected the claim. (B-168032, April 14, 1972). Defendant did not, in asserting the overpayment, make any reference to 39 U.S.C. § 6423(b), or regulations issued pursuant thereto, and apparently they were not called to the Comptroller General’s attention.

We start with the proposition that departmental regulations are law governing the award and interpretation of contracts, and provide useful and valuable guidelines for the resolution of all Government contract cases. Winston Bros. Co. v. United States, 458 F.2d 49, 198 Ct.Cl. 37 (1972). In order to apply to a contract, the regulation need not be physically incorporated in the contract, and it need not even have been in effect when the contract was awarded. Bethlehem Steel Corp. v. United States, 423 F.2d 300, 191 Ct.Cl. 141 (1970). We did not proclaim this to be universally true, but regarded it as a reasonable interpretation when the regulation was remedial, intended to afford the contractor safeguards against arbitrary agency determinations. The 1960 change in the Postal Manual is of that, character. It would be unreasonable to exclude it from application to then extant messenger designations in view of their informal character, necessarily relying on departmental regulations for most of their body, as well as their frequent long duration. We hold, therefore, that the 1960 regulation applied equally to messenger designations awarded before as well as after the regulation date, and defendant has bound itself not to effectuate pay adjustments to such messengers, to reflect increased or decreased costs, without the messenger’s consent.

Defendant, however, argues that-a case such as it views this one to be is not within the regulation. By defendant’s interpretation of the contract, it is not a matter of an increased or decreased cost, but of an item of work simply not done. But, in 1962 defendant invoked § 6423(b) and, by implication, the regulation thereunder, to justify the 960 extra compensation. It is clear defendant did not then consider it was amending the contracts to call for additional work. § 6423(b) was not by its terms a vehicle for that. It considered it was paying for the unforeseen cost of work already required. Except for § 6423(b), defendant could have made adjustment only via cancelling the designation and advertising a new designation. It is with singular inconsistency that defendant now says the same section is inapplicable to cancellation of the same 960 premium. If the question was one of cost in 1962, it was one in 1969. Defendant was certainly under the impression that plaintiff enjoyed a reduction in* its costs as a result of the military operating the forklift after 1966, constituting a changed condition. Had it chosen, it could have established the net cost reduction and negotiated for a reduction in that amount. Since it had a remedy under the contract, it was acting in breach thereof when it unilaterally and retroactively cut the contract rate without invoking contract procedures.

It may be thought strange that defendant should have bound itself not to adjust downward for a changed condition as defined in the statute, except by consent. The explanation appears to be that defendant always had the option to cancel and readvertise. . According to the Congressional report cited, supra, the mail messenger service was a matter of small operations for the smaller communities. Reductions were generally for decreased volume of mail, which the Post Office would know of. An unobserved reduction of cost would be a rarity and was not provided for, it seems. It may, however, be noted that with respect to Star Route Contracts, the restriction of changed condition adjustments to those made by consent is statutory. 39 U.S.C. § 6423(a). The Post Office evidently just did not wish to involve its contract disputes machinery in this class of case.

The result we arrive at may seem unfair to defendant, but it is quite likely retroactive entire deletion of the 960 charge was unfair to plaintiff. The contract provided means by which a result fair to both sides could possibly have been negotiated. Since defendant, desiring a change, could have invoked these contract procedures, and failed to do so, the breach of contract and resultant loss falls on it.

According to the petition, plaintiff desires to be awarded interest, but interest is not awardable in this class of case.

Defendant’s motion for summary judgment is denied. Plaintiff’s cross motion for summary judgment is allowed. Judgment is entered for plaintiff in the amount of $28,443.84.


author: RICH, Judge.

text:
    BURGER CHEF SYSTEMS, INC., Appellant, v. BURGER MAN, INC., Appellee.
    Patent Appeal No. 9185.
    United States Court of Customs and Patent Appeals.
    March 14, 1974.
    Catherine F. McCarthy, General Foods Corp., Law Dept., White Plains, N. Y., attorney of record, for appellant.
    Oliver P. Howes, Jr., New York City, attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board, one member dissenting, 176 USPQ 191 (1972), dismissing an opposition to the registration of the words “Burger Man” with the design of a man as a composite trademark for “drive-in and carry out restaurant services.” We reverse.

Opposer is the acknowledged prior user and registrant of “BURGER CHEF” for drive-in restaurant services, Reg. No. 745,577, issued February 19, 1963, claiming use since 1957, and owns other registrations thereof for food products, soft drink syrups, and apparatus related to its restaurant business. Opposer fyas a chain of over eleven hundred restaurants, either owned or franchised, and during the five-year period 1967-1971 those restaurants did a gross business of $771 million in connection with which $19 million was spent on promotion.

The mark sought to be registered is as follows:

As the dissenting member of the board pointed out, the composite mark “conjures up the same commercial impression as opposer’s ‘BURGER CHEF’ mark” because the man in the mark suggests the idea of a chef. This view points up a main area of contention between the parties — and between the members of the board. Query: What is the Burger Man wearing, particularly on his head? Is he a chef, as appellant contends, or a waiter, as appellee contends ? Appellant’s brief makes the self-serving assumption that appellee’s mark contains the representation of a chef and appellee’s brief makes the equally self-serving contention that he is wearing a waiter’s vest and striped pants and is therefore not a chef. Ap-pellee does admit that the Burger Man “is wearing a cook’s or chef’s hat” but argues that this does not create the impression that the man is a chef. Perhaps the Burger Man is a short-order cook who is running a hamburger stand, perhaps he is sui generis; but taking judicial notice of the fact that waiters in general do not wear hats, we cannot escape the impression that the object on his head is a chef’s hat of sorts and, remembering that trademarks are psychological, we think Burger Man does conjure up the concept of “chef.” A chef is a man, more often than not, and therefore a Burger Man who is a chef creates a psychological impression akin to that created by the trademark “BURGER CHEF” in the mind of the beholder. This, we think, would be particularly true under the circumstances of use of the marks by the parties in chain restaurants catering to the motorist trade where many customers are on the move and in a hurry and often select their eateries on the basis of casual recollection of what they may have experienced in other places at other times, or on the basis of the psychological impact of a TV or radio commercial which may have made a fleeting impression.

We think there is a clear likelihood of confusion between “BURGER CHEF” and “Burger Man” coupled with a picture of what many observers will take, rightly or wrongly, to be a chef.

Another point urged by appellee is that appellant does not use a design in connection with its word mark. This conclusion appears to be predicated on the registrations of record. But the registrations are not the whole story on how appellant uses its “BURGER CHEF” trademark. The evidence, including numerous photographs of signs at various of appellant’s restaurants, shows that opposer’s signs have commonly included a representation of a chef in association with the word-mark “BURGER CHEF.” Appellant is entitled, in an opposition, to rely on its uses as well as its registrations. These uses, which were not contested by appellee, we think give further support to the likelihood of confusion.

We recognize, as both the record and common sense tend to show, that “burger” is a popular name for hamburger steak and sandwiches made therewith and is a term in general use by others selling such merchandise. But in this case we have to consider the specific marks before us as a whole, compare them with each other, and determine as best we can from all the circumstances whether confusion is likely, to the damage of opposer. We conclude that it is likely.

The decision of the board is reversed.

Reversed.

       Chef is defined in Webster’s New International Dictionary, 2d Ed., inter alia, as “2. The head cook of a large establishment, as a hotel or club; hence, loosely, a cook.”


author: MILLER, Judge.

text:
    MASSEY JUNIOR COLLEGE, INC., Appellant, v. FASHION INSTITUTE OF TECHNOLOGY, Appellee.
    Patent Appeal No. 9149.
    United States Court of Customs and Patent Appeals.
    March 21, 1974.

      Edward G. Fenwick, Jr., J. Timothy Hobbs, Washington, D. C. (Mason, Fenwick & Lawrence, Washington, D. C.), attorneys of record, for appellant.
    Harold Sacks, New York City, attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, abstracted at 175 USPQ 717 (1972), granting appellee’s petition to cancel appellant’s registration No. 816,357 on the principal register for the following composite service mark registered for “EDUCATIONAL SERVICES — NAMELY, OFFERING COURSES IN FASHION, MERCHANDISING, AND RETAILING”:

The registration is dated October 4, 1966, and is based on an application filed November 19, 1965, with first use in commerce asserted to have been November, 1963.

Appellee is the owner of two service marks registered on the principal register for “EDUCATIONAL SERVICES AT THE COLLEGE LEVEL,” namely: No. 932,423 for the mark “FASHION INSTITUTE OF TECHNOLOGY”; and No. 932,422 for the following mark, which is stated to comprise the letters “FTT” •

Both registrations are dated April 11, 1972, and are based on applications filed December 18, 1969, with first use in commerce alleged to have been September, 1944. Appellee filed its petition for cancellation on April 29, 1970.

In its petition, appellee alleged that since its founding (in 1944), Fashion Institute of Technology has been known by the designation “F.I.T.” and “FIT”; that its services have been conducted under such designations; and, in substance, that appellant’s mark, particularly the letters “FIA,” so resembles the letters “FIT” and “F.I.T.” as to be likely to cause confusion among specified segments of the public, so that any fault or deficiency in the curriculum found in the courses offered by appellant would seriously injure appellee’s reputation.

The board found that there was no dispute over the material facts; that the services of the parties include “generally similar educational courses in the field of fashion”; and that appellee is the prior user of the letters “F.I.T.” by many years. It further found that “the letters ‘F.I.A.’ are visually the most prominent literal feature” of appellant’s mark and that this feature “creates a commercial impression separate and apart from the remaining features” of the mark. Such being the case, it said that if the letters “F.I.A.” are found to be confusingly similar to appellee’s mark “F.I.T.” appellant’s mark in its entirety must be so regarded. The board then proceeded to hold that the contemporaneous use of “these three letter marks” for the specified services would be likely to cause confusion or mistake, or to deceive. The sole issue on this appeal is whether the board' erred in its determination and in granting the petition for cancellation.

That marks must be considered in their entireties in determining whether there is likelihood of confusion or mistake is a basic rule in comparison of marks. Here the board, having determined that the services of the parties were “generally similar,” sought to establish an exception to the rule, namely: if the most prominent feature of a mark creates a commercial impression separate and apart from the remaining features of the mark, any confusing similarity with respect to it is determinative with respect to the mark in its entirety. We know of no authority which supports such an exception and hold that the board erred on this point. The error was compounded when the board, after dissecting appellant’s mark treated the dissected portion “F.I.A.” (properly “FIA”) as one of the “three letter marks” (emphasis supplied) to be compared.

Appellant points out that it has had its registration for some seven years; that appellee could have filed a notice of opposition to the registration, but did not do so (although appellant did not raise the issue of laches below under 15 U.S.C. § 1069); and that in the intervening years considerable sums of money have been spent in promoting and advertising its services so that it has developed valuable good will in its mark. It contends that Patent Office tribunals and this court have drawn distinctions between the burden of proof required in cancellation proceedings and in opposition proceedings, citing, among others, Prince Dog and Cat Food Co. v. Central Nebraska Packing Co., 305 F.2d 904, 49 CCPA 1328 (1962), where the court said: “Cancellation of a valuable registration around which a large and valuable business good will have [sic] been built should be granted only with ‘due caution and after a most careful study of all the facts.’ ” The implied suggestion by appellant is that appellee’s burden of proof with respect to the crucial issue of “likelihood of confusion” should be greater than it would be if this were an opposition proceeding.

This court has stated its approval of a rationale “to the general effect that the petitioner in a cancellation proceeding bears a much heavier burden of proof than the opposer in an opposition proceeding.” W. D. Byron & Sons, Inc. v. Stein Bros. Mfg. Co., 377 F.2d 1001, 54 CCPA 1442 (1967). Such a rationale may find support to the extent that a holder of a registered mark enjoys the benefit of his certificate as prima facie evidence of the validity of the registration, his ownership of the mark, and his exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate; also of his continued use of the mark from the date of filing the application. Further, prima facie evidence of “validity” would include absence of “likelihood of confusion” with other registered marks for similar goods or services. When any of these matters is at issue, the petitioner must overcome the prima facie evidence of the registrant. Moreover, the longer a party waits, after the time for bringing an opposition has expired, to commence a cancellation proceeding, the greater may be the number of facts (e. g., evidence of actual confusion) to be considered in determining the quantum of proof required.

Nevertheless, in an opposition proceeding, the opposer also bears the burden of proof. Often this involves his alleged belief of “likelihood of damage” on the ground of “likelihood of confusion” resulting from the contemporaneous use of the involved trademarks. In either an opposition proceeding or a cancellation proceeding, the issue of “likelihood of confusion” should be approached with a view to achieving the objective of the Lanham Act, namely:

To protect trade-marks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this bill is directed.

The problem of achieving this legislative purpose of the Act becomes apparent from the variable factors which can be present in a given opposition or cancellation proceeding: degree of likelihood of confusion, relative length of time of use of a mark, and relative investment in good will by the parties. It is compounded when the opposer or petitioner holds a registered mark and enjoys the benefit of his certificate for prima facie evidence purposes, as outlined earlier in this opinion. It is easy to visualize a situation in which the quantum of evidence required of an op-poser would be greater than that required of a petitioner in a different situation. And where the situations are identical, there would seem to be no good reason for requiring a different quantum of evidence according to whether a party is an opposer or a petitioner.

It can, of course, be argued that, because a registrant’s certificate is prima facie evidence of “exclusive right to use,” there is a presumption of absence of “likelihood of confusion,” so that a petitioner bears a “heavier” burden on this point than an opposer, who has no such presumption to overcome. However, there is nothing in 15 U.S.C. §§ 1057, 1063, or 1064 to support this view. In one case, the opposer would have to produce sufficient evidence to prove “likelihood of confusion.” In the other case, the petitioner would be required to produce sufficient evidence to rebut a presumption of absence of “likelihood of confusion.” Without some statutory direction, a preponderance of the evidence will usually be “sufficient” in both cases.

From the foregoing, we conclude that when the issue of “likelihood of confusion” is involved, the legislative purpose is not to be achieved through some general rule such as that stated in the Byron & Sons case, supra, regarding the degree of burden of proof depending on whether there is an opposition oi cancellation proceeding; or by following a standard of “due caution” and “most careful study,” which should characterize the approach to any case. Rather, consideration of all the facts and circumstances in each case is what is required.

In the case before us, the parties have introduced considerable evidence on, and have devoted much argument to, the nature of the educational services and advertising channels in connection with which their respective marks have been used. Notwithstanding some differences, we are satisfied that these are sufficiently similar to support a finding of likelihood of confusion if the marks themselves are so similar as to be likely to cause confusion. On the latter point, aside from various exhibits showing use of the marks in advertisements and brochures, little evidence appears of record. The dean of students of Fashion Institute of Technology stated: “We refer to it as the fashion industry,” in answer to the question of whether the term “Fashion” is in widespread use in the industry. The counsel for Fashion Institute of Technology said that “The word ‘Fashion’ is used by many people.” The Executive Vice President of the Fashion Institute of Technology gave unobject-ed-to hearsay responses that members of her board “felt there was confusion . and that there might be misinterpretation, that others might think this was the Fashion Institute of Technology” (referring to two advertisements of Fashion Institute of America, neither of which shows appellant’s mark); that (referring to one of these advertisements): “I believe this one came to me from the chairman of the board and it had been sent to him, as I remember, from England and it was at the time when someone had made an inquiry of him about FIT students in London and they turned out to be students of FIA.”

The advertising manager of Fashion Institute of America, when asked whether she was aware of any other schools that offer fashion courses, mentioned, among others, the “Dallas Fashion Merchandising,” the “Atlanta School of Fashion and Design,” and “Bauder Fashion College.” She said “No” when asked whether she had ever received any communications from any students who wrote FIA thinking they were writing to FIT and whether she had received any mail addressed to FIT. She said “No” when questioned whether any editor, magazine, or publication had asked her whether there was any association between FIA and FIT.

Appellee cites several cases in support of its proposition that “FIA” so resembles “FIT” as to cause likelihood of confusion. This misses the point that appellant’s composite mark is to be compared in its entirety with “F.I.T.” or “FIT.” Also, all but one of the cited cases involved only word marks (“Twin Flo” v. “Duo Flo,” “DATA” v. “DATA-SPEED,” “Stor-Mor” v. “Stormer,” and “AO” v. “AOC”) and are inapposite to consideration of a composite mark such as appellant’s. Moreover, prior decisions on other marks are of little help on the question of likelihood of confusion. Geigy Chemical Corp. v. Atlas Chemical Industries, Inc., 438 F.2d 1005, 58 CCPA 972 (1971).

Appellee also contends that the other elements of appellant’s mark are “not sufficiently conspicuous” to distinguish “FIA” from “FIT.” However, we note that not only does appellant’s composite mark include a distinctive ribbon design, but “FASHION INSTITUTE OF AMERICA” is plainly visible to provide distinctive meaning to any commercial impression which might be created by the letters “FIA.”

Comparing the marks in their entireties and considering the record before us, we are persuaded that, when applied to the services of the parties, the marks are not likely to cause confusion, mistake, or to deceive within the meaning of 15 U.S.C. § 1052(d), and accordingly so hold.

The decision of the board is reversed.

Reversed.

      . 15 U.S.C. § 1057(b).

      . J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 52 CCPA 981 (1965).

      . Liberty Mutual Insurance Company v. Liberty Insurance Company of Texas, 185 F.Supp. 895 (E.D.Ark.1960).

      . This court has pointed out that 15 U.S.C. § 1063 does not require proof of actual damage to sustain an opposition; nor does it provide that anyone who shows that he will be “damaged” by a registration will necessarily succeed in preventing registration, because legal damage is the test. American Novawood Corp. v. United States Plywood-Champion Papers, Inc., 426 F.2d 823, 57 CCPA 1276 (1970). If an opposer sustains his burden of proof regarding the ground of “likelihood of confusion,” there is an irrebuttable presumption of likelihood of legal damage to him. Daggett & Ramsdell, Inc. v. Proctor & Gamble Co., 275 F.2d 955, 47 CCPA 844 (1960). See also Geo. A. Dickel Co. v. General Mills, Inc., 317 F.2d 954, 50 CCPA 1322 (1963); American Throwing Co., Inc. v. Famous Bathrobe Co., Inc., 250 F.2d 377, 45 CCPA 737 (1957).

      . H.R.Rep.No.219, 79th Cong.1st Sess. 3 (1945); S.Rep.No.1333, 79th Cong.2d Sess. 4 (1946). For a discussion of the legislative purpose of the Lanham Act, with particular reference to ex parte proceedings, see Judge Rich’s concurring opinion in In re National Distillers and Chemical Corp., 297 F.2d 941, 49 CCPA 854 (1962).

      . For example, prior use need not be shown by an opposer relying on a registered mark unless the applicant counterclaims for cancellation. Contour Chair-Lounge Co., Inc. v. Englander Co., Inc., 324 F.2d 186, 51 CCPA 833 (1963); David Crystal, Inc. v. Shelburne Shirt Co., Inc., 465 F.2d 926, 59 CCPA 1248 (1972).

      . It has been said that production of a preponderance of the evidence does not necessarily discharge the burden of persuasion. American Law Institute Model Code of Evidence (1942), Rule 1, comment par. (5). However, where doubt is sufficiently strong to prevent persuasion in such a case, the familiar trademark rule that doubt is to be resolved against the “newcomer” can be used to decide the issue. Fricks’ Foods, Inc. v. Mar-Gold Corporation, 417 F.2d 1078, 57 CCPA 731 (1969).

      . See In re E. I. DuPont de Nemours & Co., 476 F.2d 1357 (CCPA 1973).


text:
    John M. DAVIS and Sigred B. Lanoux, Appellants, v. Harold George BURROWS and Stephen John Hepworth, Appellees.
    Patent Appeal No. 9167.
    United States Court of Customs and Patent Appeals.
    March 21, 1974.
    Sol Schwartz, Wilmington, Del., attorney of record, for appellants. A. Newton Huff, Wilmington, Del., of counsel.
    Herbert M. Adrian, Jr., Charlotte, N. C., (Adrian & Sayko, Charlotte, N. C.), attorney of record, for appellees. Thomas J. Morgan, New York City, of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This is an appeal from the decision of the Board of Patent Interferences awarding priority to appellees, the senior party.

Although appellees’ U.S. application (S.N. 557,631, June 15, 1966) was filed later than appellants’ U.S. application (S.N. 546,593, May 2, 1966), appellees rely under 35 U.S.C. § 119 on three of their British applications. These antedate appellants’ U.S. application, and none was filed more than one year prior to the date of filing of appellees’ U.S. application.

The invention concerns nylon fibers containing hexamethylene diammonium phenylphosphonate (an organic salt). The salt, which results from reacting hexamethylene diamine and phenlyphos-phonic acid, can be formed in situ during the polymerization of the nylon or preformed and added as such.

The only count reads: “A synthetic polycarbonamide filament containing hexamethylene diammonium phenylphos-phonate.”

Proceedings Below

The examiner accorded appellees the benefit of their British I application as inherently disclosing that the salt of the count is formed in situ, this being confirmed by the disclosure in British II and by appellants’ own disclosure, and granted appellees’ motion to shift the burden of proof. For the purpose of showing that appellees’ British I does not support the count, appellants produced an ex parte affidavit by one Dr. Ivan Keith Miller stating that none of the salt of the count was extracted from certain filament polymers during certain tests and concluding, therefore, that the salt' was not present in the filament ploymer. Appellants also submitted a statutory declaration under Rule 282 made by appellee Burrows in connection with a British opposition proceeding and stating his agreement with certain conclusions in the Miller affidavit.

The board pointed out that the Miller affidavit was not evidence taken in accordance with Rule 271, et seq; also, that the starting materials recited in the affidavit, unlike the common method of preparation employed by both parties to produce the composition of the count, included a copper salt, so that the affidavit was not pertinent to appellees’ disclosure in British I. The board determined that the statutory declaration did not constitute evidence that the count is not supported in either British I or British II because the conclusions related to polymerization in the presence of potassium iodide and cupric acetate, neither of which is disclosed as present by the British applications. Accordingly, it concluded that the examiner properly accorded appellees the benefit of their British I application.

In response to appellants’ argument that appellees cannot be allowed the benefit of British II under 35 U.S.C. 119, third paragraph, because British I had not been shown to have been “withdrawn, abandoned, or otherwise disposed of,” the board stated that said third paragraph relates to use of a subsequently filed foreign application in the nature of a continuing application; that if, as appellants contend, British I does not disclose the composition of the count, British II, which does, would of necessity become the “first filed” application for purposes of 35 U.S.C. § 119.

Opinion

Since there is no argument over the fact that appellees’ U.S. application supports the count, the basic issue is whether the count finds support in appellees’ British I application. Appellants contend that nowhere in British I is there a recitation of a polycarbonamide filament containing hexamethylene diammonium phenylphosphonate. However, Example 1 of British I calls for reacting hexamethy-lene diammonium adipate (the material from which the claimed polycarbon-amide filament is prepared) with hexamethylene diamine and phenyl phosphonic acid in an aqueous solution which, as appellants state in their brief, produces the salt of the count. A table in British I shows improved dyeability of the yarns produced in the examples, and the application concludes with the statement:

As can be clearly seen from the table, yarns containing phosphonic acid residues have greatly enhanced receptivity to acid dyestuffs compared with the yarns not containing phosphonic acid residues.

It is our opinion that the phrase “phosphonic acid residues” resulting from a reaction such as that specified by Example 1 is merely another way of expressing the salt of the count as having been formed in situ and that British I, therefore, directly supports the count, albeit not in haec verba. If there were any doubt, this conclusion is confirmed by British II and by appellants’ own application. Use of British II for such a confirmatory purpose is not giving it the kind of “effect” envisaged by 35 U.S.C. § 119 which would require that British I be “withdrawn, abandoned, or otherwise disposed of,” nor does it diminish the adequacy of the British I disclosure for purposes of 35 U.S.C. § 112. Also, we agree with the board that appellants, having themselves disclosed that the salt of the count may be formed in situ, are in no position to urge that the similar process of appel-lees does not similarly produce the salt of the count. Vogel v. Jones, 486 F.2d 1068, (CCPA 1973).

Inasmuch as we have already expressed the opinion that British I directly supports the count, we find it unnecessary to decide the “inherency” issue raised by appellants.

In view of the foregoing, we hold that the board correctly determined that ap-pellees’ British I supports the count.

It appearing that approximately one-half the material added to the record is relevant to the issues on appeal, costs of one-half of such material are charged to appellants and the other one-half to ap-pellees.

Affirmed.

      . British I (26,596), June 23, 1965; British II (6,130), February 11, 1966; and British III (17,917), April 25, 1966.

      . Appellants’ application states: “The hexamethylene diammonium phenylphosphonate may be formed separately and added to the salt solution or the reaction mixture or it may be formed in situ.”

      . The third paragraph provides: “In like manner and subject to the same conditions and requirements, the right provided in this section may be based upon a subsequent regularly filed application in the same foreign country instead of the first filed foreign application, provided that any foreign application filed prior to such subsequent application has been withdrawn, abandoned, or otherwise disposed of, without having been laid open to public inspection and without leaving any rights outstanding, and has not served, nor thereafter shall serve, as a basis for claiming a right of priority.”


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence Olin “Head” REVEL, Defendant-Appellant.
    No. 73-2261.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.
    See also D.C., 362 F.Supp. 448.
    Ernest C. Hornsby, Tallassee, Ala., M. H. Myerson, Jacksonville, Fla., for defendant-appellant.
    Ira DeMent, U. S. Atty., David B. Byrne, Jr., D. Broward Segrest, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Defendant-appellant Revel and 12 others were indicted in the Middle District of Alabama in a two-count indictment charging a violation of 18 U.S.C. § 1955 and a conspiracy to violate the same statute. After a jury trial, Revel was found guilty on both counts, and sentenced to imprisonment for four years. We affirm the conviction.

Appellant’s first contention is that charging him with a violation of § 1955 and conspiracy to violate § 1955 violates Wharton’s Rule. The rule states:

An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. 1 Anderson, Wharton’s Criminal Law and Procedure, 1957, § 89.

Appellant argues that since a violation of § 1955 requires a gambling business participated in by five or more people, conspiracy is a necessary element of the crime itself, and therefore under the rule, a person may not be charged with both the substantive offense and conspiracy to commit the substantive offense. This contention has only recently been rejected by this court, and we reject it again in this case. United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974).

Next, appellant argues as follows: A violation of state law is an element of the offense under § 1955. The Alabama statute of limitations for the crime alleged in the indictment expired before the date of the indictment. Therefore, no violation of state law existed at the time of the indictment, and because there was no state law violation, there could not have been a federal law violation.

The factual bases of this allegation are all correct. The substantive violation alleged in the indictment was violation of Title 14, Sections 261 and 278, Code of Alabama 1940, Recompiled 1958. These violations are misdemeanors, and are governed by the 12-month statute of limitations in Title 15, Section 222, Code of Alabama 1940, Recompiled 1958. Neither count of the indictment alleges any overt act or agreement to act later than November 25, 1971, so the statute of limitations expired November 25, 1972. ' The indictment was filed March 13, 1973.

Appellant correctly emphasizes the importance of statutes of limitations in the criminal law, and the strictness with which the government must comply with them. Nevertheless, the question in this ease is one of a choice between federal and state law. We agree with appellant that Congress could have incorporated the state statutes of limitation into § 1955, as it has done in other instances. But the question is not whether Congress could have incorporated the state statutes, but whether it did so. We feel that it did not.

The gravamen of the indictment is that appellant violated federal law. Cf., United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Just as in 18 U.S.C. § 1952, the so-called Travel Act, the reference to state law in the federal statute is for the purpose of defining the conduct prohibited and for the purpose of supplementing, rather than pre-empting, state gambling laws. United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970), cert. denied sub nom., Panagiotopoulos v. United States, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), cert. denied sub nom., Tornabene v. United States, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 (1970). See P.L. 91-452, 84 Stat. 922, Title VIII, § 811 and 1970 U.S.Cong. and Admin.News, 4032. Cf. United States v. Thaggard, 477 F.2d 626 (5th Cir. 1973).

Certainly Congress could have incorporated state statutes of limitations into the federal statute, but we cannot perceive any indication that it has done so, either in the pre-existing federal racketeering statutes, Chapter 95 of Title 18, United States Code, or in the Organized Crime Control Act of 1970, P.L. 91-452, 84 Stat. 922, which added § 1955 to Title 18. To the contrary, Congress, in passing the 1970 act, emphasized the federal interest in dealing with organized crime because of the influence of organized criminal activities on the economy, security and general welfare of the entire country. Congress excluded local, transitory gambling activities from the scope of the law, leaving their regulation to state and local authorities, but it asserted federal jurisdiction over racketeering and large-scale gambling activities. In view of this bifurcated system of enforcement, it seems reasonable to use federal standards in enforcing the federal law. This is proper for § 1955, just as it is for § 1952. United States v. Cerone, 452 F.2d 274 (7th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972).

We have examined appellant’s other contentions of error and find them to be without merit.

Affirmed.

      . 18 U.S.C. § 1955 provides, in part:
      (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of
      an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.

        (b) As used in this section—
      (1) “illegal gambling business” means a gambling business which'—
      (i) is a violation of the law of a State or political subdivision in which it is conducted ; ,
      (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
      (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. * * *

      . 18 U.S.C. § 1952 provides, in part:
      (a). Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in
      which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States. * * * * sfc


author: LEWIS R. MORGAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Randall Gene WHITE and James Randall Kircher, Defendants-Appellants.
    No. 73-1642.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.
    Rehearing Denied May 16, 1974.

      Stanley M. Newmark, Miami, Fla., (court-appointed), for White.
    Robert C. Stone, Hollywood, Fla., for Kircher.
    Andrew I. Friedrich, Stanley L. Selig-man, Hollywood, Fla., Basil E. Dalack, Miami, Fla. (court-appointed co-counsel), for Kircher.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Atty., Dept, of Justice, Washington, D. C;, for plaintiff-ap-pellee.
    Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

Defendants-appellants White and Kircher were arrested on September 20, 1972, and later indicted for possession of heroin with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Both were convicted in separate jury trials in the Southern District of Florida. White was sentenced to concurrent terms of imprisonment for 18 months with a special parole term of three years, and Kircher was sentenced to imprisonment for two years with a special parole term of three years. Finding the evidence introduced at Kircher’s trial insufficient to support the jury verdict, we reverse his judgment of conviction. We find no error in the conviction of White.

I. WHITE

The only witness of any significance to testify at White’s trial was Richard Walde, special agent of the Federal Bureau of Narcotics and Dangerous Drugs, assigned to the Drug Abuse Law Enforcement unit (DALE) in Miami, Florida. Walde testified that on September 19, 1972, he met with Mike Hennan, a confidential informant, at a Royal Castle restaurant. He and Hennan then went to a house at 1171 S.W. 31st Avenue in Miami, where they met with defendant White and negotiated a purchase of some heroin.

The three men drove to a 7-Eleven grocery store in Lauderhill, where White left Hennan and Walde, saying he would have to meet his source alone. He returned a few minutes later to. report that his source was not at home. They drove back to the S.W. 31st Avenue address, where the two split up, with the understanding that they would meet again at four that afternoon. At the second meeting, White told Walde that he could not sell Walde any heroin unless Walde “shot up” (injected heroin into himself) in front of him. Walde refused, and the deal fell through.

The next day Hennan called Walde, and as a result of their conversation the two men met at the same Royal Castle restaurant at 11:30 a.m. Walde searched Hennan and determined that he had no drugs or money in his possession. He then gave Hennan five “marked” $20 bills and a government car which had also been searched. Hennan drove off in the government car, with Walde following in another car. Hennan drove to the house on S.W. 31st Avenue, where he picked up White and another man named Kettner. Hennan, White and Kettner then drove to the 7-Eleven store, with Walde following at a distance. Hennan and Kettner left the car, and White drove off. Walde did not follow White, but saw him return some time later. Walde watched Kettner and Hennan re-enter the car and return to 1171 S.W. 31st. At that point, Kettner and White left the car, and Walde followed Hennan back to the Royal Castle. Walde testified that at the Royal Castle,

Hennan got into my car and he produced a bag which he stated was heroin, a hundred-dollar piece, a hundred dollars worth of heroin, which he stated he had gotten from the defendant White.

Finally, Walde testified that after taking White to the police station and receiving a written waiver of White’s so-called Miranda rights, he obtained a written confession to the effect that after leaving Hennan and Kettner, White went to Kircher’s house at 4921 N.W. 13th Street, Lauderhill, and purchased $100 worth of heroin from Kireher with five $20 bills, later giving the heroin to Hennan.

White’s first argument on appeal is that the district judge erroneously allowed the confession into evidence because in spite of the written waiver of rights, any confession obtained while a suspect is in custody is inherently coerced. Counsel for White acknowledges that this position is an extension of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but argues that his position is a logical and necessary extension of Miranda. We do not agree that the argument is a necessary extension of Miranda. The entire Miranda opinion was based on the assumption that not all in-custody interrogation is coerced, and we are unable to hold to the contrary here. The Court in Miranda held specifically that an in-custody interrogation following a knowing, intelligent and voluntary waiver of rights by the accused is admissible as evidence in a criminal prosecution. We follow that holding in this case.

Next, White argues that the confession does not meet the requirements of Miranda itself because the waiver of rights was coerced. Not only was the evidence presented at the hearing on the motion to suppress sufficient to support the district judge’s denial of the motion, the evidence almost required it. There was no indication that any threats were made against White, or that he was tricked into signing the confession. The only contrary indication was a single statement by the agents that it would be “helpful” to sign the confession. In an otherwise non-coercive atmosphere, such an isolated statement standing alone is insufficient to invalidate an otherwise legal confession.

White’s third argument is that the district court erred in allowing the confession to be introduced into evidence without sufficient corroboration. Counsel for White argues that before a confession is introduced into evidence, or at least at some point in the government’s case, it is necessary to introduce evidence independent of the confession establishing a corpus delicti. That is, the government must prove, without the use of the confession, the existence of a crime, and may use the confession only to connect the defendant with the crime. Since the only testimony regarding the heroin was that it passed from one government agent to another, the argument concludes, no corpus delicti was proved. This argument has two flaws. First, as the testimony quoted above indicates, Walde was allowed to testify without objection that Hennan told him that he (Hennan) obtained the heroin from White. This testimony was obviously hearsay. Nevertheless, counsel who at other points in the trial repeatedly, promptly and correctly made objections to testimony and argument, clearly waived his client’s right to exclude this evidence by not objecting to the testimony.

But there is also another reason why we cannot accept this argument, and that is that independent evidence of a corpus delicti was not needed. It is true that in some jurisdictions, the prosecution must present substantial independent evidence of every element of the corpus delicti in order to provide sufficient corroboration of an extrajudicial confession. See, e. g., Robinson v. State, 71 Okl.Cr. 75, 108 P.2d 196 (1940), Commonwealth v. Puglise, 276 Pa. 285, 120 A. 401 (1923).

However, the federal courts follow the majority rule, cf., Anno., 45 A.L.R.2d 1316 (1956), that “The corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti.” Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L. Ed. 101 (1954). See also, Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); United States v. Khandjian, 489 F.2d 133 (5th Cir. 1974). As this court recently held,

The requirement is only that there be extrinsic evidence corroborating the confession as a whole, which, taken together with the confession, is sufficient to support a finding of guilt beyond a reasonable doubt. Smith v. United States, 1954, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed.2d 192; United States v. Abigando, 5 Cir. 1971, 439 F.2d 827. There is no requirement that there be evidence extrinsic to the confession proving every element of the offense, and no requirement that the extrinsic evidence be sufficient to establish the corpus delicti. If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible; and some elements of the offense may be proven entirely on the basis of a corroborated confession. See Smith, 348 U.S. at 156, 75 S.Ct. 194, 99 L.Ed. 192; Abi-gando, 439 F.2d at 832-833. United States v. Gravitt, 484 F.2d 375, 381 (5th Cir. 1973). [Emphasis in original.] [Footnotes omitted].

In this case, there is no corroboration of many of the facts in White’s confession, but the testimony of Walde does tend very strongly to corroborate the confession as a whole. Walde’s testimony covers the entire time period of the incident except the time that White left Hennan and Kettner alone at the 7-Elev-en store. White’s confession “fills in the gap” in Walde’s story, and is completely consistent with it. Under these circumstances, the required corroboration of White’s confession was provided by Walde’s testimony, and the confession was admissible.

Finally, White argues that the district court erred in failing to direct a verdict of acquittal because of insufficient evidence. The district court correctly stated that without White’s confession, there would not have been enough evidence to send the case to the jury. But with the confession, there obviously was enough.

White’s other points of error are without merit.

II. KIRCHER

At Kireher’s trial, Hennen testified about the meetings between himself, Walde and White. He testified that on September 20, he got the ear and the marked $20 bills from Walde, picked up White, drove to the 7-Eleven, where White left in the car, and then returned later with some heroin. He testified that he had never met Kircher.

Walde then testified that on September 20, he had the dealings with Hennen described above. He also testified that on September 20, he observed that Kircher was arrested by the local police for a traffic violation, and was taken to a house at 4921 N.W. 13th Street in Lauderhill. The house was searched pursuant to a warrant, and one of the $20 bills Walde had given Hennen was found in the bedroom of the house. After being advised of his right to remain silent, Kircher at first denied that the $20 bill was his, but then admitted that it belonged to him. Walde also testified that some narcotics paraphernalia were found in the house.

Finally, counsel for the government and the defense stipulated that had Agent McDonald been at the trial, he would have testified that on September 20 a person who may or may not have been White drove up to the residence at 4921 N.W. 13th Street in Lauderhill, got out of the car White had been driving, went into the house and stayed for about 15 minutes, and then left.

The correct test to use in reviewing a district court’s action with respect to a motion for a directed verdict of acquittal has been stated in several different ways. Recently, this court used the following test:

On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. [Citations omitted].

United States v.Jeffords, 491 F.2d 90 (5th Cir. 1974)[March 18, 1974, No. 73-2535].

We also said repently,

The standard utilized by this Court is,pofwhether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. [Emphasis added]. Odom v. United States, 5 Cir. 1967, 377 F.2d 853, 855.

United States v. Polite, 489 F.2d 679 (5th Cir. 1974) [February 13, 1974, No. 73-2500].

Last year, we stated, the test this way:

If the evidence is such that a reasonable person may have a reasonable doubt as to the defendant’s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to the jury if the evidence is so scant as to allow the jury merely to speculate or to conjecture as to the defendant’s guilt. In other words, a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged. [Citation omitted].

United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973).

We are inclined to think that the differences between these various formulations may be merely verbalistic. United States v. Warner, 441 F.2d 821 (5th Cir. 1971), but no matter what view of them is taken, we think the evidence presented against Kircher fails to qualify under any correct formulation of the test. There were simply too many “loose ends” in the government’s case as it was presented at Kireher’s trial. On the basis of the evidence presented by the government, we hold that a jury could not reasonably have concluded beyond a reasonable doubt that Kircher committed all the elements of the crimes charged.

For these reasons, the conviction of White is affirmed, and the conviction of Kircher is reversed.


text:
    Irma J. SMITH et al., Plaintiffs-Appellees, United States of America, Plaintiff-Intervenor, v. CONCORDIA PARISH SCHOOL BOARD et al., Defendants-Appellants.
    No. 72-2969.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1974
    See also, D.C., 331 F.Supp. 330.
    W. C. Falkenheiner, Dist. Atty., Con-cordia Parish School Board, Vidalia, La., John F. Ward, Jr., Baton Rouge, La., for Concordia Parish School Bd.
    Stanley A. Halpin, Jr., George M. Strickler, Jr., New Orleans, La., David L. Norman, Civ. Rights Div., Dept, of Justice, Lloyd Parker, Jr., Ed. Section, Civ. Rights Div., Dept, of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., for plaintiffs-ap-pellees.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   PER CURIAM:

Prior to the beginning of the 1970-71 school term, the Concordia Parish (Louisiana) School Board dismissed or demoted 20 black educators, including appellee Davis. The board acted without developing and promulgating objective criteria, as required by this court in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969), rev’d on other grounds, Carter v. West Feliciana School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970). The Federal District Court for the Western District of Louisiana ordered all the black educators reinstated. On June 15, 1971, this court affirmed that order and further required that the board “. . . submit, within 15 days, non-discriminatory, non-racial objective criteria to cover both faculty reduction and dismissals for cause.” [Emphasis added]. Smith v. Concordia Parish School Board, 445 F.2d 285 at 286 (5th Cir. 1971).

In August of 1971, the school board held a hearing and found that Davis should be dismissed for alleged mismanagement of school funds. On September 2, 1971, the board filed proposed objective criteria under Singleton, supra, after having been granted an extension -by the district court. The same day, the board entered its decision dismissing Davis. The district court ordered immediate reinstatement of Davis with full salary benefits, responsibilities and back-pay from the date of his dismissal. The school board now appeals that order. It argues that at the time of the dismissal the district court had not approved any objective criteria filed by the board in accordance with Singleton; therefore; the board could dismiss Davis for cause under the Louisiana Teachers’ Tenure Act (LRS 17:441-17:444).

We find this argument unacceptable. A 30-day extension had been granted the school board to allow submission of the Singleton criteria. It was during that extension that Davis was found to be unfit by the board. This tactic cannot be allowed. Even though the board complied with the Louisiana Teachers’ Tenure Act, it did not comply with the order of this court. A delay in obtaining approval for Singleton criteria, even when due only partially to action of the board, cannot be used to justify failure to comply with this court’s order of June 15,1971.

We agree with the district court that Davis should be immediately reinstated. Further consideration, however, should be given possible mitigation of the back-pay award. See, Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971) and Bhargave v. Cloer, 355 F.Supp. 1143 (N.D.Ga.l972).

This case is remanded for reinstatement of Mr. Davis and exact determination by the district court of the dollar amount of the back-pay award.

      . The pertinent part of Judge Edenfield’s opinion in Bliargave says, “Nevertheless plaintiff is entitled to that portion of her wages for the 1970-71 school year which have not been paid to her, less any wages earned by plaintiff which might be applied in mitigation.” Supra at 1146.
      Therefore, the district court should determine the amount of the back-pay award due Mr. Davis, minus other salary he earned which might have mitigated the award.