text:
    GULF & SOUTH AMERICAN STEAMSHIP CO., INC., et al. v. The UNITED STATES. AMERICAN EXPORT LINES, INC., et al. v. The UNITED STATES.
    Nos. 45-73, 57-73.
    United States Court of Claims.
    July 19, 1974.
    J. Alton Boyer, Washington, D. C., attorney of record, for Gulf & South American Steamship Co., Inc., and others. Kominers, Fort, Sehlefer & Boyer, Washington, D. C., of counsel.
    James N. Jacobi, Washington, D. C., for American Export Lines, Inc., and others; J. Alton Boyer, Washington, B. C., attorney of record. Kurrus & Jacobi, Washington, D. C., of counsel.
    Emmett B. Lewis, with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before DAVIS, KUNZIG and BENNETT, Judges.
   ON DEFENDANT’S MOTIONS TO DISMISS THE PETITIONS

DAVIS, Judge:

In these parallel suits six common carriers by water, which held contracts with the United States to transport government cargo, seek recovery for the drastic increase in the price of bunker fuel (i. e., fuel for operating vessels) which occurred in 1970-1971. Effective July 1, 1970, each plaintiff had entered into two contracts, for one-year periods, with the Military Sea Transportation Service of the Navy Department (now known as Military Sealift Command, “MSC”). One pact was a “Container Agreement”, the other a “Shipping Agreement”; both were largely in standard forms, were drafted by the Government, and were filed with the Federal Maritime Commission. Under these contracts the carriers undertook to transport certain types of government cargo over specified routes at stated rates. The general format of such federal agreements has been held not to violate the Shipping Act of 1916, 46 U.S. C. § 801 et seq. (1970). American Export Isbrandtsen Lines, Inc. v. Federal Maritime Comm’n, 127 U.S.App.D.C. 62, 380 F.2d 609 (1967).

The latter half of 1970 and the first part of 1971 saw a great increase in the price of bunker fuel needed to run the lines’ ships. Claimants published, in accordance with usual practice, bunker fuel surcharges in tariffs filed with the Maritime Commission, and then collected the surcharge from commercial shippers. Defendant refused to pay such amounts for property transported under the Container and Shipping Agreements, contending that those contracts did not authorize such an increase. In these actions the carriers sue for the surcharges on two theories. The first (stated in Claim I of the petitions) is independent of and apart from the terms of the Shipping and Container Agreements; the other (Claim II) is pleaded directly under those contracts.

Defendant has moved to dismiss both counts of the petitions, asserting, first, that the carriers have failed to state a proper claim under either theory, and, second, that in any event this court is without jurisdiction over the suits. We discuss the merits of Claim I in Part I of this opinion, deal with Claim II in Part II, and take account of the jurisdictional contention in Part III.

I

In February 1971 the Maritime Commission ordered (36 Fed.Reg. 3849 (1971)) plaintiffs and other carriers to show cause why their failure to impose and collect a bunker fuel surcharge on government cargo carried under the Shipping and Container Agreements was not in violation of the non-discrimination and non-preference provisions of the Shipping Act of 1916, in view of the fact that the surcharge had been imposed and recovered by the carriers on commercial cargo. The Military Sealift Command intervened and participated in the proceeding (FMC Docket No. 71-17), urging (among other things) that the agreements validly imposed the risk of the price rise on the carriers, that the Commission could not order the imposition of the surcharge on the military cargo, and that if there was discrimination against commercial cargo the only remedy was to remove the impost from the commercial sector. The Commission’s report and orders in this proceeding form the essential underpinning for Claim I of the petitions. Claimants’ position is that the Commission squarely held that the Government owed the surcharges, and that that ruling is binding here on the principle of collateral estop-pel. At the same time plaintiffs make it perfectly clear that they do not assert that defendant has violated any provision of the Shipping Act, nor do they ask the court to find any such violations by the Government.

It would serve no general purpose to take up seriatim all of the Commission’s various statements and determinations in order to test the correctness of plaintiffs’ contention that the agency decided that the Government owed the surcharges. We are satisfied that in its ultimate conclusions: (a) the Commission did not hold or purport to hold that the Government was liable for the surcharges under the Agreements or the Shipping Act; (b) the Commission did not hold in this or any other proceeding that the Government was in violation of the Shipping Act; but (c) the Commission did rule that the carriers violated the Shipping Act by imposing the surcharges on commercial cargo while not seeking to collect it on military cargo; and in that connection, (d) all the Commission decided was that plaintiffs were obligated under the Shipping Act to attempt to remedy the discrimination against commercial cargo by either trying to collect the surcharges from the Government or by rescinding the surcharges against non-government shippers.

That the Commission did not hold the Government liable for the surcharges is plain to us from its statement (Report of Jan. 14, 1972, p. 6) that the shipper (MSC) is beyond Commission jurisdiction “in this type of situation where no violations of the [Shipping] Act by the shipper have been alleged”; from its deliberate refusal to consider the bearing or fairness of the Agreement terms (Report, supra, p. 5); from its order denying reconsideration (May 1, 1972) which expressly noted that the proceeding was never enlarged to consider any allegation that MSC had violated the Act; and from its repeated references to the ASBCA which imply that that tribunal is to interpret the Agreements (Report, supra, pp. 4, 6, 10; Order of Denial of Petition for Reconsideration (May 1, 1972); Order of Reopening of Proceeding and Modification of Final Order (Jan. 16, 1973)). By the same token, the Commission obviously did not find the Sealift Command in violation of any part of the Shipping Act. See also n. 3, supra.

It is equally clear that the Commission did not rule that the carriers are automatically in violation of the Shipping Act unless and until they actually succeed in collecting the surcharges from the Government — no matter what the obstacles. The holding was, rather, that the lines are in violation unless and until they do all they reasonably can to try to collect these sums; ultimate success in that endeavor was not required or mandated. The original holding of violation was entered because the Commission believed that plaintiffs were not doing all they reasonably could to attempt to recover the surcharges; when the Commission became convinced that such efforts were being made, it vacated its initial determination.

The original decision (Report of Jan. 14, 1972, p. 6) held another carrier, Sea-Land Service, Inc. “no longer in violation of any of the sections of the Shipping Act in issue” because it had imposed the surcharge on the Sealift Command “and is currently attempting to collect it by pursuing its remedy before the Armed Services Board of Contract Appeals (ASBCA).” (The order entered on the report dismissed Sea-Land from the proceedings.) The next-to-last sentence of the report then said: “The alternatives available to respondents are the imposition of the surcharge and the further effort to collect it as Sea-Land Service has done in its pursuit before the ASBCA or the cancellation of the surcharge imposed against shippers of commercial cargo” (Report, p. 10).

The same thread reappears in the order denying the reconsideration petition (May 1, 1972), in which the Commission decided that it was too late for the carriers (other than Sea-Land) to pursue their remedies before the ASBCA; “[tjhese were the alternatives available to the respondents at the time of the implementation of the surcharge, and not at the present, after the Commission has found them in violation of the Act.”

Finally, in its order reopening the proceeding and modifying the original final order (Jan. 16, 1973), the Commission noted that the “respondents, other than Sea-Land, were considered to be in continuing violation of those sections of the Shipping Act [§§ 16 and 17] because the record at the time of decision did not show that they had sought to collect the surcharge in question from the Mili-, tary Sealift Command (MSC), as had Sea-Land.” The Commission then “annulled and rescinded” the determination in its final order of January 14, 1972 that the interested carriers (other than Sea-Land) were in violation of the Act, and discontinued the proceedings. The reason for this change was that “the Commission’s [original] decision would require respondents to perform an unnecessary and useless act. The action of Sea-Land which exonerated it from further violation of the Shipping Act was the pursuit of an appeal from MSC’s refusal to pay the surcharge before the Armed Services Board of Contract Appeals, and since any decision from the Board in favor of Sea-Land would have been equally applicable to all other respondents to require them to appeal to the Board was to direct a futile gesture.”

From this last order and its predecessors, it could not be clearer that the Commission held no more than that, to the extent the carriers were in violation of the Shipping Act, it was only because they had failed to make reasonable efforts to collect the additional bunker fuel charge from the defendant (or to remove it from commercial cargo). Further than that the Commission did not go; certainly it did not decide that the carriers would be in violation of the Shipping Act even if they made all reasonable efforts to collect from the Government but failed in their attempt.

The upshot is that the claimants cannot invoke the Commission’s determination and orders as deciding that the Government is liable. On the contrary, the Commission left that issue wide open and unresolved. There is no prior ruling which could possibly provide the basis for collateral estoppel. The first count of the petitions, which is directly bottomed on the plaintiffs’ erroneous view of what the Commission decided, is therefore unsound on its face and must be dismissed for failure to state a proper claim.

II

The allegations in Claim II of the petitions present substantially the same cause of action as in Sea-Land Service, Inc. v. United States, 497 F.2d 928 — that plaintiffs are entitled to recover the bunker fuel surcharges under the Cost Responsibilities clauses of the Container and Shipping Agreements. The ASBCA rejected Sea-Land’s claim (72-2 BCA -jf 9605), and that carrier filed suit here. Both sides moved for summary judgment on the merits. On

May 31, 1974, after argument, the court, by order, remanded Sea-Land to the Armed Services Board of Contract Appeals to determine whether the drastic increase in the cost of bunker fuel, on which the plaintiff predicated its claim, was foreseen by that plaintiff when it entered into the contract or was reasonably foreseeable at that time as likely to arise during the contract period. The court was of the view that the “ultimate disposition of the case will be facilitated and may be quickened by following that course.” We would, of course, want the same information before deciding the merits of Claim II in the present petitions.

The six plaintiffs all appealed to the ASBCA from the administrative denial of their demand for the surcharges under the Cost Responsibilities article. Five of these appeals have not been decided on their merits; some still remain on the Board’s docket but have been informally stayed; the others were dismissed for technical reasons, but in effect remain pending because they are expressly subject to reinstatement upon the disposition of the Sea-Land litigation. Defendant maintains that Claim II cannot be pursued until the Board proceeding is completed and the Board remedy exhausted. The carriers reject this contention, urging that the count is ripe for decision here in view of the decision of the ASBCA in Sea-Land adverse to the shipping lines’ position.

The lead given by our recent Sea-Land order makes it unnecessary to determine whether or not plaintiffs have as yet adequately exhausted their administrative remedy. In either event there still remains the undecided issue of whether the drastic increase in the cost of bunker fuel, on which plaintiffs predicate their claims, was foreseen by them when they entered into the contracts on July 1, 1970, or was reasonably foreseeable at that time as likely to arise during the contract period. These cases should be remanded to the ASBCA for that determination, as in Sea-Land, since the court believes that, here too, there should first be a definitive determination of that factual question before a judicial decision is rendered on the legal question of the scope and coverage of the Cost Responsibilities clause.

The plaintiff carriers have argued that the controversy under the Cost Résponsibilities clause raised in Claim II is not subject to the disputes procedure since no factual issue is in dispute. Without agreeing in any way that issues under the Cost Responsibilities article need go to the Board only where there is a dispute over the facts (cf. Zidell Explorations, Inc. v. United States, 427 F.2d 735, 737, 192 Ct.Cl. 331, 335 (1970) ), we point out that in any case plaintiffs’ assumption is no longer accurate since our Sea-Land order singled out a significant issue of fact which appears to the court to be still unsettled.

In the present cases, unlike Sea-Land, the parties have not addressed any of the merits of the carriers’ claim under the Cost Responsibilities article. With respect to Claim II, they have limited themselves to questions of jurisdiction and whether the administrative remedy has been adequately pursued. The court, however, need not be confined by the parties’ presentation if that turns out to be too constricted; within its powers and jurisdiction the court can make the appropriate disposition in the particular case in the interests of justice. In this instance we have power under Pub.L. 92-415, 86 Stat. 652, and 28 U.S.C. § 1651(a) to remand to the ASBCA to decide the issue we have designated above. Since the plaintiffs have all duly appealed to that Board, there is no problem of an untimely appeal such as defendant thought to be a bar in such cases as William Green Constr. Co. v. United States, 477 F.2d 930, 937, 201 Ct.Cl. 616, 627-628 (1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2606, 41 L.Ed.2d 213 (1974).

Remand of Claim II for that purpose is wholly appropriate since it will put these cases on a par with Sea-Land, and will give us information we believe necessary before we decide, if we have to, the coverage and application of the Cost Responsibilities clause. It serves the economy of both court and parties to set in motion the process of obtaining the factual findings we desire, without waiting for further motions by one side or the other. There is, moreover, no unfairness to the parties in going beyond the limited questions they have argued. These cases were presented to the court in tandem with Sea-Land and it should be no surprise that the court treats them as linked. In addition, the disposition we order does, as a matter of fact, direct itself to the question of remedy-exhaustion canvassed by the litigants; similarly, the remand aids with the disposition-for-the-present of the jurisdictional problem which is the other matter argued on Claim II (see Part III, infra).

Accordingly, we shall remand Claim II of these cases to the ASBCA for the same type of determination as in Sea-Land.

Ill

The alleged jurisdictional bar to the suits is that both claims are necessarily based upon maritime contracts of carriage and must be brought in a District Court under the Suits In Admiralty Act, 46 U.S.C. § 741 et seq. (1970). The defendant asks that we dismiss the actions or transfer them to a District Court under 28 U.S.C. § 1506.

This issue need not be faced with respect to Claim I since we have decided, in Part I, supra, that (assuming jurisdiction) the count must anyway be dismissed for failure to state a proper claim. That disposition bypasses the jurisdictional defense. Cf. Monett v. United States, 419 F.2d 434, 435-436, 190 Ct.Cl. 1, 4-5 (1969), cert. denied, 400 U.S. 846, 91 S.Ct. 91, 27 L.Ed.2d 82 (1970).

As for Claim II, the question has already been partially resolved. With regard to the Container Agreement, the same defense was raised earlier in the Sea-Land litigation, and was denied by the full court, in an order dated March 30, 1973, on the authority of Alaska Barge & Transport, Inc. v. United States, 373 F.2d 967, 179 Ct.Cl. 216 (1967). This panel cannot, of course, depart from that Sea-Land decision of the full court, and defendant has given us no reason to suggest to the court en banc that it reconsider the order of March 30, 1973. The Container Agreement involves inland as well as ocean carriage. The contract is therefore not purely maritime, and the non-maritime features are both significant and not properly severable from the maritime features. Under Alaska Barge & Transport, Inc., as well as other decisions, this court has jurisdiction.

The Shipping Agreement is different since it provides only for ocean transportation. Plaintiffs urge us to exercise pendent or ancillary jurisdiction because the issues under the Cost Responsibilities articles of both sorts of agreement are precisely the same, and disposing of all claims in one litigation would further the dictates of judicial economy, fairness and common sense. Defendant asserts that we have no such authority. But at the present phase of the litigation we need not reach this problem of whether we have or should invoke such pendent or ancillary jurisdiction (cf. Eastport S. S. v. United States, 372 F.2d 1002, 1012-1013, 178 Ct.Cl. 599, 613-614 (1967) ). At the least, there is jurisdiction, as we have just reaffirmed, over the Container Agreement aspect of the petitions, and that power is enough to remand the cases to the ASBCA as we have done in Part II, supra. If these suits come back to this court on completion of the remand proceedings, the defendant can then raise anew, if it wishes, the jurisdictional defense as against our consideration and determination of the Shipping Agreement segment of the litigation.

IV

On these grounds, we grant the defendant’s motion to dismiss the petitions insofar as Claim I is concerned. That count is dismissed. As for Claim II, we deny the motion to dismiss (or transfer) but remand the cases to the Armed Services Board of Contract Appeals, under Public Law 92-415 and General Order No. 3 of 1972, to determine whether the drastic increase in the cost of bunker fuel, on which plaintiffs predicate Claim II, was foreseen by plaintiffs when they entered into the contracts on July 1, 1970, or was reasonably foreseeable at that time as likely to arise during the contract period. Of course, the Board may, in its discretion try or consider these issues in the present cases along with the Sea-Land proceeding on remand. Plaintiffs’ attorneys shall be responsible for keeping the court advised periodically as to the status of the proceedings in the present cases on remand. If further proceedings are had in this court after completion of the remand proceedings, the parties will be free to raise and present, in addition to contentions relating to issues arising out of the remand proceedings, any issues and arguments then relevant to Claim II of the petitions, including the jurisdictional defense to inclusion of the Shipping Agreements in that claim.

      . Another related case is Sea-Land Service, Inc. v. United States, 497 F.2d 928 but that litigation does not present the issues raised in Count I of the present petitions. Count II is, however, connected with Sea-Land (see Part II, infra), as is one aspect of the jurisdictional defense (see Part III, infra).

      . The report and orders are appended to the petitions.

      . Plaintiffs and other carriers filed a separate complaint against MSC with the Commission (American Export Isbrandsten Lines, Inc. v. Military Sealift Command, FMC Docket No. 72-10) alleging violations by the Command of the Shipping Act (in refusing to pay the surcharges) and seeking reparations. The Commission dismissed the complaint (order of Feb. 15, 1973) on the ground that it lacked jurisdiction to award reparations from a shipper to a carrier. This accords with another recent Commission decision. See Maritime Service Corp. v. Plaza Provision Co., FMC Docket Nos. 72-27, 72-28 (order of Jan. 15, 1973).

      . See footnote 3, supra.

      . Of course, the Commission did not rule that the Government was not liable; it simply did not consider or reach that issue.

      . The same order declared: “Furthermore, that argument was thought to be specious— there is no evidence whatsoever that MSC obtained transportation at less than the applicable rates by any unfair means in violation of Section 16”, prohibiting undue preferences.

      . Or, alternatively, to remove the exaction from commercial cargo.

      . The report also declared (p. 6) : “Once having jmrsued the former alternative, the imposition of the surcharge on military cargo, followed by resort to the ASBCA, a respondent would have done all it can as far as the Commission is concerned since the shipper (MSC) is beyond its jurisdiction in this type of situation where no violations of the Act by the shipper have been alleged.”

      . Defendant urges that this order of January 16, 1973, completely annulled and rescinded the entire report and order of January 14, 1972. Plaintiffs counter that still outstanding is a portion of the original order calling upon the carriers to cease and desist from further violations of the Act. We need not attempt to resolve this controversy since, for our purposes, it is immaterial whether or not plaintiffs remain under the obligation to try to collect the surcharges.

      . Plaintiffs also say that Claim I would be good even if confined to the “barebones” allegations that plaintiffs, common carriers subject to the Shipping Act, provided transportation service for defendant, for which the latter has refused to pay in full without lawful excuse. On that reading, however, the claim would have no identity separate from that of Claim II which alleges that the carriers are entitled to recover under their agreements. Aside from the Maritime Commission’s determination and order — which we have just rejected as the basis for a claim —plaintiffs put forward nothing except their contracts. There is no contention that the agreements are invalid, and their general legality has been upheld. American Export Is-brandtsen Lines, Inc. v. Federal Maritime Comm’n, supra, 127 U.S.App.D.C. 62, 380 F.2d 609 (1967). If the contracts are valid, as we must assume, they embody the plaintiffs’ arrangements with the Government and no recovery can be had contrary to their provisions.

      . Article 1:9 of the Container Agreement provided:
      “(a) As a means of facilitating the administration of this Agreement, the parties have agreed that certain specific items of cost anticipated as likely to arise in the performance of their respective duties under Articles 1:5, 1:6 and 1:8 shall be listed, and the cost responsibilities of the parties indicated, in a schedule attached hereto as Appendix B (MSTS Form 4280/7B) and made a part of this Agreement. Determinations of responsibility for specific items of cost agreed to by the parties under this Article are to be consistent with the general language of Articles 1:5, 1:6 and 1:8; provided, however, in the event of conflict, the specific language of Appendix B shall prevail.
      “(b) Either party may nominate changes to or additional items of cost and cost responsibility to be incorporated into Appendix B. Such nominating party shall serve upon the other party a written nomination, together with a detailed statement of all pertinent facts and appropriate supporting data
      necessary for a determination of the cost responsibility under Articles 1:5, 1:6 and 1:8. If the other party agrees in writing to the nomination, such nomination will be incorporated into Appendix B as of the agreed effective date. Failure of the other party to agree to the nomination within a period of thirty (30) days from its receipt, or within a mutually agreeable greater period, shall constitute a dispute concerning a question of fact within the meaning of that term in the Article entitled “Disputes" in Part III of this Agreement.”
      The Shipping Agreement embodied a comparable, though slightly different, Cost Responsibilities provision.

      . The body of the order is as follows:
      “For the purposes of their motions for summary judgment, both parties have assumed that the drastic increase in the cost of bunker fuel, on which plaintiff predicates its claim, was neither foreseen by plaintiff when it entered into the contract on July 1, 1970, nor reasonably foreseeable at that time as likely to arise during the contract period. The Armed Services Board of Con- . tract Appeals made the same assumption and did not, in view of its legal holding, determine the factual correctness of that assumption. The materials and arguments presented to the court on these cross-motions for summary judgment do not show either that the defendant concedes the correctness of the assumption or that there can be no proper dispute over the point. Without passing in any way at this time upon the legal issue of whether plaintiff can recover if the basic factual assumption is in fact correct, the court is of the view that there should first be a definitive determination of that factual question. The ultimate disposition of the case will be facilitated and may be quickened by following that course. The appropriate tribunal to make the factual finding in the first instance is the Armed Services Board of Contract Appeals, and the case should be remanded for that purpose. “IT IS THEREFORE ORDERED that (a) the case is remanded to the Armed Services Board of Contract Appeals, under Public Daw 92-415 and General Order No. 3 of 1972, to determine whether the drastic increase in the cost of bunker fuel, on which plaintiff predicates this claim, was foreseen by plaintiff when it entered into the contract on July 1, 1970, or was reasonably foreseeable at that time as likely to arise during the contract period ;
      “(b) plaintiff’s attorney shall be responsible for keeping the court advised periodically as to the status of the proceedings on remand ; and
      “(c) if further proceedings are had in this court after completion of the remand proceedings, the parties shall be free to raise and present, in addition to contentions relating to issues arising out of the remand proceedings, the issues and arguments presented on the current cross-motions for summary judgment.”

      . The appeal of plaintiff United States Lines was dismissed on the merits by the Board in August 1972, after it had decided Sea-Land. See 72-2 BCA ¶ 9655.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    Homer A. BREITBECK et al. v. The UNITED STATES.
    No. 285-73.
    United States Court of Claims.
    July 19, 1974.

      Peter J. Hart, for plaintiffs; Edward L. Merrigan, Washington, D. C., attorney of record. Smathers, Merrigan & Herlong, Washington D. C., of counsel.
    Steven J. Bercik, Elizabeth N. J., with whom was Asst. Atty. Gen., Carla A. Hills, for defendant.
    Before LARAMORE, Senior Judge, and DAVIS and KASHIWA, Judges.
   ON DEFENDANT’S MOTION TO DISMISS THE PETITION

DAVIS, Judge:

This is another case presenting the question of whether the United States may be sued in this court on a claim arising out of the activities of a governmental entity which can be sued in its own name in another forum. See Butz Eng’r Corp. v. United States, 499 F.2d 619, 204 Ct.Cl.-, (June 1974) (United States Postal Service); Porter v. United States, 469 F.2d 583, 204 Ct.Cl.-(May 1974) (Trust Territory of the Pacific). The suit before us involves the Saint Lawrence Seaway Development Corporation created by Congress in 1954, as a wholly-owned federal corporation, to construct and operate the United States portion of the Saint Lawrence Seaway, 33 U.S.C. § 981 et seq. Plaintiffs are employees of the Corporation, engaged in aiding shipping vessels to enter and leave the locks maintained by their agency on the Saint Lawrence River. They assert that the Corporation failed to pay them all the wages properly owing them for the period of October 20, 1968 through July 27, 1969. The Government moves to dismiss the petition “for the reason that the suit is not properly one against the United States and therefore is not within the jurisdiction of this court under 28 U.S. C. § 1491.” The action must be maintained, according to defendant, against the Corporation which “may sue and be sued in its corporate name” (33 U.S.C. § 984(a)(3)) and “shall be held to be an inhabitant and resident of the northern judicial district of New York within the meaning of the laws of the United States relating to venue of civil suits” (33 U.S.C. § 984(a)(6)).

In Butz Engineering Corp., supra, 499 F.2d pp. 621-623, the court recently collated the general law on suits in this court against the United States for claims stemming from the activities of federal corporations and agencies which can be sued eo nomine. The prior decisions and Butz Engineering make it clear that action here is not precluded by the mere fact that the entity is a wholly-owned federal corporation which is itself suable in some other court. The critical questions, as formulated in Butz Engineering, are, first, whether the organization is functioning as an instrumentality of the Federal Government, and, second, whether the Government can demonstrate some special reason why this court is without jurisdiction, even though the agency is a federal instrument, to hear the claim.

On the first point there is little doubt in this instance. The Saint Lawrence Seaway Development Corporation was established by Congress as a wholly owned Government corporation (31 U.S. C. § 846), and made “subject to the direction and supervision of the Secretary of Transportation.” 33 U.S.C. § 981. “The management of the Corporation shall be vested in an Administrator who shall be appointed by the President, by and with the advice and consent of the Senate.” 33 U.S.C. § 982(a). The Deputy Administrator is likewise appointed by the President with the advice and consent of the Senate. 33 U.S.C. § 982(b). “The Corporation, its property, franchises, and income are expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof * * *,” but may make payments “in lieu of property taxes upon property which was subject to State and local taxation before acquisition by the Corporation.” 33 U.S.C. § 986. “All general penal statutes relating to the larceny, embezzlement, or conversion, of public moneys or property of the United States shall apply to the moneys and property of the Corporation.” 33 U.S.C. § 990(a). The functions of the Corporation (33 U.S.C. § 983) — to construct the United States segment of the seaway; to operate and maintain it in conjunction with the Canadian Seaway Authority; to coordinate activities regarding power projects in that area — all fall directly within the federal authority over interstate commerce. Not only are the Corporation’s activities under the direction and supervision of the Secretary of Transportation (33 U.S.C. § 981), but its tolls and charges are specifically subject to the approval of the President (33 U.S.C. § 988). Annual reports of the Corporation’s operations are submitted to the President and the Congress (33 U.S.C. § 989).

These and other provisions of the legislation establishing the Corporation demonstrate that it is “an agency selected by the Government to accomplish purely Governmental purposes” (Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 539, 66 S.Ct. 729, 730, 90 L.Ed. 835 (1946)), and that it is “ ‘doing work of the Government.’ ” National State Bank of Newark v. United States, 357 F.2d 704, 708, 174 Ct.Cl. 872, 879 (1966). It is as much an instrumentality of the United States as the Reconstruction Finance Corporation (Cherry Cotton Mills, Inc. v. United States, supra, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835; National Cored Forgings Co. v. United States, 132 F.Supp. 454, 458-459, 132 Ct.Cl. 11, 18-19 (1955)), the Federal Housing Administration (National State Bank of Newark v. United States, supra, 357 F.2d 704, 174 Ct.Cl. 872), and the United States Postal Service (Butz Eng’r Corp. v. United States, supra, 499 F.2d 619, 204 Ct.Cl.-)— claims against which agencies have been held to be vindicable in this court by actions against the United States under the Tucker Act.

Are there solid reasons for holding, nevertheless, that a claim against this Corporation can be brought only against the agency itself? Defendant’s primary point is that Congress designed the agency to be financially self-sufficient, and it would contradict that purpose to permit judgments on Corporation claims to be paid from the general funds of the Treasury. Cf. Kyer v. United States, 369 F.2d 714, 177 Ct.Cl. 747 (1966), cert. denied, 387 U.S. 929, 87 S.Ct. 2050, 18 L.Ed.2d 990 (1967). Ultimately the Corporation’s revenue was to come from charges and tolls for use of the seaway’s facilities and services (33 U.S.C. § 984(a) (10) and (11), § 988), but “[t]o finance its activities” it was also empowered to issue revenue bonds (in a total amount not greater than $140,000,000) payable from corporate revenue to the Secretary of the Treasury (33 U.S.C. § 985). The latter official is directed by the statute to purchase these bonds out of designated Treasury funds. Ibid.

By these provisions Congress did attempt to make the agency self-supporting, in general, in the long run, but there are likewise substantial indications that this was not to separate it wholly from the Treasury. The long run was quite extended since the bond maturities could be up to fifty years; meanwhile Treasury funds could and were expected to be used. Even in the long run, regular federal funds would still be involved. At the instance of the Corporation itself (represented by the United States Attorney), the Northern District of New York held that a tort claim, cognizable under the Federal. Tort Claims Act, could not be maintained against the agency but had to be brought against the United States under the Tort Claims Act (with the judgment to be paid, of course, from general appropriated funds). Handley v. Tecon Corp., 172 F.Supp. 565 (N.D.N.Y.1959). Section 987(b) contemplates that employee retirement annuities (both longevity and disability) are to be paid by the Civil Service Commission from Treasury moneys and, similarly, disability payments for Corporation employees are made from the general employees’ compensation fund. There is, in short, no such clear cleavage between the Corporation’s own funds and those of the United States that one can say that Congress wished to cut the agency entirely loose from the Treasury or from appropriated funds.

With regard to employee suits there are additional signs that it is proper to consider the Corporation an agent of the United States for the purpose of proceedings under the Tucker Act. Seaway workers are federal employees subject to the Classification Act, 5 U.S.C. § 5101 et seq., and the general schedule of pay rates, 5 U.S.C. §§ 5331-5338. See 33 U.S.C. § 984(a)(7). They are also covered by the general federal legislation on travel and transportation expenses. 5 U.S.C. § 5721 et seq. And as we have already noted, they receive their retirement annuities and disability compensation from federal funds administered by the United States. 33 U.S.C. § 987 (b). It would be anomalous to hold that suits for retirement pay could be brought under the Tucker Act but that actions for regular pre-retirement pay could lie only against the Corporation itself.

Here, as in Butz Engineering Corp., supra, the defendant puts its trust in Abbott v. United States, 112 F.Supp. 801, 125 Ct.Cl. 330 (1953), holding this court without jurisdiction to entertain employee pay claims arising out of the operation of the Panama Canal Company. Our opinion in Butz Engineering Corp. declared that “Abbott represents a restricted reading of Tucker Act jurisdiction which appears out of keeping with the case law described above [in the Butz Engineering Corp. opinion] and, hence, should probably be contained to its facts.” 499 F.2d at 627, 204 Ct.Cl. at -. Moreover, the situation of the Panama Canal is different from that of the Saint Lawrence Seaway Development Corporation. Canal employees are not subject to the Classification Act (see 5 U.S.C. § 5102(a) and (c)(12)) or the general pay schedule (see 5 U.S.C. § 5331). The Abbott court concluded that “Congress seems to have wanted to cut it [the Canal] loose from the United States as far as possible.” 112 F.Supp. at 804, 125 Ct.Cl. at 335. As already indicated, we cannot make the same observation in this case.

Accordingly, we hold that plaintiffs’ claim meets the requirement of our general jurisdictional statute, 28 U.S.C. § 1491, that the petition state a “claim against the United States.” The Government does not urge that any of the other requirements of § 1491 is missing. This court therefore has jurisdiction of the claim, the defendant’s motion to dismiss for lack of jurisdiction must be denied, and the case is remanded to the trial division for further proceedings in due course.

      . The section requires the Corporation to contribute its proportionate share to the civil-service retirement and disability fund, and also to the employees’ compensation fund. The Corporation is also liable for its “fair portion of the cost of the administration of the respective funds, which shall be paid by the Corporation into the Treasury as miscellaneous receipts.”

      . The absence of any provision in the Seaway Act for reimbursing the Treasury for judgments rendered under the Tucker Act may be due to the date of enactment (1954), which antedated by several years the recent provisions to that effect in legislation passed in 1970 and later.

      . We do not, of course, decide whether or not plaintiffs’ claim could also have been brought, alternatively, against the Corporation in the Northern District of New York.


author: LANE, Judge.

text:
    Application of Alfred D. SCARBROUGH.
    Patent Appeal No. 9249.
    United States Court of Customs and Patent Appeals.
    June 27, 1974.

      Nathan Cass, Westlake Village, Cal., atty, of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for Commissioner of Patents. Jere W. Sears, Washington, D. C., of counsel.
    Before MARKET, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   LANE, Judge.

This appeal is from the decision of the Board of Appeals affirming the rejection, for insufficiency of disclosure under 35 U.S.C. § 112, first paragraph, of all the claims (claims 1, 2, 4, 5, 7 and 8) remaining in appellant’s application serial No. 768,739, filed October 18, 1968, for “Computer-Controlled Vocal Response.” We affirm.

A preliminary matter, a motion by the Commissioner of Patents to strike TJ.S. Patent No. 3,479,648 to Sleven et al. from the record, is also before us. The patent was added to the transcript of record by motion of appellant (over objection by the Commissioner which was denied without prejudice to renewal of such objection) for the purpose of showing that appellant’s specification was enabling. However, the patent issued November 18, 1969, after appellant’s filing date, and hence cannot be relied on as evidence for that purpose. In re Glass, 492 F.2d 1228 (CCPA 1974). Therefore, the motion to strike is granted.

The Invention

The invention relates to providing vocal responses from a vocabulary of spoken words stored in analog form under the control of a computer.

The sole drawing is set forth below: [numeral added in bracket]

An explanation of the invention suitable for present purposes is given in appellant’s brief as follows:

Briefly, in accordance with the invention, a large vocabulary of spoken words are recorded in analog form at a relatively low speed on an appropriate record medium, such as the drum memory 10 illustrated in the drawing. In order to obtain compact storage of the words constituting the vocabulary, a large plurality of words are recorded on each of the 64 tracks or channels which may typically be provided on the drum. In composing a desired message for vocalization, selected words constituting the desired message are played back from the drum at a relatively higher speed than was used for recording. During this high speed playback, a conventional general purpose digital computer 11 cooperates with a head selection network 12, a sector selection gate 16 and a timing and control section 13 to provide for selection and read out from the drum of the particular analog spoken words required for the desired message. The selected spoken words thus read out from the drum are fed to a high speed A/D converter 17 for conversion to equivalent digital form. The resulting digitized spoken words are suitably assembled by group assembly 18 and then transferred via a data register 19 for storage in the high speed buffer core memory of the computer 11.

Once the digitized selected spoken words constituting the desired message have been stored in the computer memory 11, they are then available for transfer to the data register 25 of an appropriate output channel 21 or 22 via input gates 26 under the control of an output control section 24 provided in each channel. A desired controllable delay between words read out from the computer memory is provided using a delay counter 23 in the channel 21 which is preset by the computer 11 and is counted down to provide the desired delay between words. The digitized spoken words of the desired message thus read out into the channel data register 25 from the computer memory are then applied via a bank of disassembly gates 27 to a D/A converter 28 for reconverting the digitized spoken words into analog form. The reconverted spoken words are then fed via a filter 30 to an audio device 29 which provides for vocalization of the desired message.

Thus, the present invention not only makes possible more compact analog storage of the spoken words constituting the system vocabulary, but also offers the very significant additional feature of making it possible to take advantage of digitizing techniques in a spoken word vocalizing system without suffering the disadvantages that would occur if the words were placed on the drum in equivalent or abbreviated digital form in the first instance. In particular, it is to be noted that digitizing is not required in appellant’s system until the selected analog-recorded spoken words constituting the desired message are read from the drum, which can be done at relatively high speed as compared to the recording speed, since the message is not vocalized during such playback. Since only relatively few spoken words on the drums are selected for playback in order to compose a desired message, the digital computer core memory need provide storage only for these relatively small number of selected digitized spoken words, rather than for the entire vocabulary.

The prior art systems for producing a selected vocal message with which the last paragraph quoted above is concerned are described in appellant’s brief to be of three types as follows:

* * * direct (i. e., analog) recording of spoken words in analog form, (for example, as occurs in a conventional commercial tape recorder) on selectable tracks of a drum or like storage medium, with each track preferably storing one word. A desired vocal response is provided from these recorded analog signals by sequentially playing back, in an appropriate sequence, selected ones of the recorded spoken words at the same speed as used during recording.
***** *
* * * the storage of the vocabulary of spoken words in digital form rather than in analog form, so as to thereby permit taking advantage of digitizing techniques in composing the
desired message to be vocalized. In such a system, the vocabulary of spoken words are stored in equivalent digital form in a suitable memory and appropriately selected for composition of the desired message to be spoken. * * * * * *
* * * systems [which] attempt to obviate the heed for a large memory for digital storage of the words of the vocabulary by storing only abbreviated digital representations of each spoken word instead of the equivalent digital representation thereof.
* * -x-

Although the application includes two method claims in addition to system claims, claim 4 is considered representative:

4. A' system for providing controlled vocal responses comprising: recording means including a memory device having a multi-track cyclically moving record-medium for storing a vocabulary of spoken words recorded in analog form in the tracks of the record-medium at a relatively low speed and with a large plurality of spoken words being recorded in each track;
first means for selectively playing back words from said memory device at a very much higher speed than said spoken words were recorded, each word being played back in sequence;
second means connected to said first means ■ for converting each selected word from analog to an equivalent digital form as it is played gack in sequence ;
third means connected to said second means for storing each selected word in digital form as it is converted in sequence;
fourth means connected to said third means for transmitting each selected word stored in digital form at a low speed commensurate with the speed at which the selected word was recorded in said memory device;
fifth means connected to said fourth means for converting each selected word in sequence from digital to analog form as it is transmitted by said fourth means; and
an audio device connected to said fifth means for producing an audible sound of each selected word in sequence from its analog-signal form.

The Rejection

The rejection sustained by the board, as previously indicated, is under 35 U.S. C. § 112, first paragraph. The board concluded that the examiner regarded the disclosure as insufficient to enable one to make or use the invention,

with particular reference to appellant’s “DIGITAL-COMPUTER” 11, “TIMING AND CONTROL” 13, “A/D CONVERTER” 17, “DELAY COUNTER” 23, and “OUTPUT CONTROL” 24 to which obviously should have been included the “D/A CONVERTER” 28.

It was the board’s view that appellant, by identifying each of the above enumerated devices only by generic name and the overall ultimate function that each is intended to perform, had represented that from this alone “a person of ordinary skill would be enabled to make and use the apparatus with only a reasonable amount of experimentation.” The board further noted that the examiner had challenged the disclosures of these enumerated devices, “which challenges we find reasonable on their face.” It considered the appellant to have been “put to his proof” that his application was sufficient to put a person of ordinary skill in the art in possession of the invention.

Commenting that appellant had sought to meet this burden by reference to various features in five patents listed — Williams et al., Avakian et al. Clapper, Koeijmans and Brown — the board stated:

We find this evidence wholly unconvincing. First, even if each of the enumerated devices were old, per se, this would not make it self-evident how each would be interconnected to function in the complex manner described in this application. In this complexity, timing between the various units is of the essence and without a timing chart relating the timed sequences for each unit an unreasonable amount of work would be required to come up with the detailed relationships appellant says that he has solved. Secondly, we find that many of the units referred to in the prior art patents have no better detail of disclosure than his own, being labeled boxes with only attributed functions. Furthermore, some of the items in the referred patents clearly are not germane to appellant’s devices, as for example, the seismic analog-to-digital converter of the reference do [sic] not appear to be the same as the voice-to-digital converter of the instant application. There is no evidence in the record that these converters are interchangeable.
We note the court in the decision on In re Forman, [59 CCPA 1178, 463 F.2d 1125,] 175 USPQ 12 [1972], stated:
However, it is not made clear [Affidavits of record] that a person skilled in the art would know which, or what parts, of these circuits could be used to construct appellant’s device or how they could be interconnected to act in coordination to produce the required results. In fact, it does not appear that the descriptions in the extracts would themselves meet the disclosure requirements of § 112. [Bracketed matter found in board’s opinion.]
It is not enough that a person skilled in the art, by carrying on investigations along the line indicated in the instant application, and by a great amount of work eventually might find out how to make and use the instant invention. The statute requires the application itself to inform, not to direct others .to find out for themselves, In re Gardner et al., 57 CCPA 1207, 427 F.2d 786, 166 USPQ 138 [1970].

Referring in more detail to the A/D and D/A converters, the board held:

* * * [I]t is self-evident that a disclosure of the conversion apparatus between voice and digital data becomes of the essence to a determination of both the adequacy of-the instant disclosure to comply with the statute as well as to any determination of the patentability of the claims over prior art methods and apparatus.
On the basis alone of the complete absence of any disclosure in the application of the apparatus required to supply the essential functions attributed to the converters 17 and 28, and the non-pertinency of the seismic data converters advanced by appellant, the rejection on inadequate disclosure clearly would be supportable.

OPINION

We are in full agreement with the board that the claims were properly rejected for insufficiency of disclosure under the first paragraph of section 112. The sufficiency of the disclosure was continually under challenge from the first action of the examiner. That challenge was plainly adequate to put appellant to his proofs that the disclosure would be enabling to a person skilled in the art. We consider the response of appellant clearly inadequate for the reasons specified by the board.

The arguments made by appellant before us are not persuasive. He argues that “all of the functions required by blocks 11, 13, 17, 23, 24 and 28 are readily providable in the art” and goes on to state that all of the various steps of his process, expressed in broad terms, are known. However, that does not answer the question whether complex elements known to perform broadly recited functions in different systems would be adaptable for use in appellant’s particular system with only a reasonable amount of experimentation. Arguments made regarding the A/D and D/A converters of Koeijmans and Brown fail to answer factually the board’s justifiable doubts over the applicability of seismic data conversion to the voice sound conversion here involved. As to the matter of the interconnections required between the blocks representing the elements and the timing there between, appellant merely argues that the board is wrong. However, argument of counsel cannot take the place of evidence lacking in the record. In re Cole, 326 F.2d 769, 51 CCPA 919 (1964); In re Schulze, 346 F.2d 600, 52 CCPA 1422 (1965).

The board in this case has interpreted and applied the law almost precisely as did this court in the later case of In re Brandstadter, 484 F.2d 1395 (CCPA 1973), where it was held that an application for a complex message retrieving system did not satisfy the enablement requirement of 35 U.S.C. § 112. As in Brandstadter, we are not convinced that the examiner’s challenge to enablement was unreasonable or has been met. We agree with the board that an unreasonable amount of work would be required to arrive at the detailed relationships appellant says that he has solved. See also In re Ghiron, 442 F.2d 985, 58 CCPA 1207 (1971).

In re Marzocchi, 439 F.2d 220, 58 CCPA 1069 (1971), relied on by appellant, involved a different type of situation. Claims 6 and 12, which recited the generic term “polyethyleneamine” as the amine adhesion enhancer, had been rejected under § 112, first paragraph, as being based on a disclosure which was not enabling. This court regarded the rejection as going to the “breadth” of the claim — whether all polyethylene amines possessed the necessary capability of enhancing adhesion. The rejection was reversed because the Patent Office had not presented sufficient reasons to doubt the objective truth of the broad disclosure contained in appellant’s specification. In the instant case, there is no challenge to the breadth of the claims nor to the objective truth of the disclosure contained in appellant’s specification. What is challenged is the sufficiency of appellant’s specification to enable a person skilled in the art to make and use the invention without undue experimentation. We agree with the board that there are adequate grounds for doubting the sufficiency of the present specification.

The decision of the board is affirmed.

Affirmed.

      . U. S. Patent 3,037,076, granted May 29, 1962.

      . U. S. Patent 3,133,268, granted May 12, 1964.

      . U. S. Patent 3,183,303, granted May 11, 1965.

      . U. S. Patent 3,344,407, granted September 26, 1967.

      . U. S. Patent 3,366,924, granted January 30, 1968.

      . The board reversed a rejection of the claims on the prior art under 35 U.S.O. § 103.


author: BALDWIN, Judge. MILLER, Judge

text:
    Application of Kenneth C. KNOWLTON.
    Patent Appeal No. 9106.
    United States Court of Customs and Patent Appeals.
    Aug. 15, 1974.

      William Ryan, Murray Hill, N. J.,- attorney of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Jere W. Sears, Washington, D. C., of counsel.
    Before MARKET, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the examiner’s rejection of claims 1-8, all the claims in appellant’s application.

The Invention

Appellant’s invention relates to a system and method for detecting programming errors or “bugs” in programs for electronic data processors or computers. The application states:

Many modern computers utilize a stored program. In order to make the program available to the computer at its interval operating speed, the program is stored in the internal memory of the computer, often in the same memory as the data to be processed is stored. Such a stored program computer is particularly liable to certain types of programming errors, such as addressing errors.
One addressing error which is particularly difficult to locate and correct is a data fetch in which the wrong storage location is addressed. Whatever is stored in that location is treated as the desired data, and processing continues, compounding the error by many subsequent stages of processing. The exact point at which the original error occurs is often very difficult to locate and correct.
Similarly, a transfer of control might be effected to an undesired memory location. Processing will normally continue, in spite of the error, and many incorrect processing sequences are executed before an impasse arises. Again, it is often difficult to locate the exact source and nature of the error.
In accordance with the present invention, the above and similar types of programming errors are detected by executing the same program at least twice. For each execution, the component subprogram parts of the program are stored in the computer memory in different sequences. Since transfers and data fetches then take place to and from completely different memory addresses, a comparison of the memory location contents for the different cases will immediately indicate addressing errors.
The invention can most advantageously be used in modern data processors of the type using multiple central processors and multiple memories. In this case, the program can be loaded in normal and in scrambled order in the different memories, or different portions of the same memory, and a separate central processor can be used to execute each program sequence. Provisions can then be made to compare the instructions executed and the data retrieved in real time, as they are executed or retrieved. The processing sequence can therefore be terminated immediately upon the occurrence of an error, and subsequent erroneous processing can be avoided. The same effect can be obtained with a single processor by alternately executing program steps from the two differently stored versions of the program, and comparing results after the execution of each pair.
The application contains simplified block diagrams (Figs. 1 and 3) of single and multiprocessor computers and descriptions thereof, which are suitable for use with appellant’s error detection system and method.
The application also contains the following figures and descriptions thereof which relate to the procedures for storing a program in the computer in a normal and “scrambled” order:
In FIG. 2A, for example, there is shown a graphical or schematic representation of what might be considered the normal or natural order of the program. As can be seen in FIG. 2A, the program is divided into subsections, 30, 31, 32, 33, 34, 35, and 36. These subdivisions may be entirely natural divisions of the programs, representing different subroutines, for example, or may be entirely arbitrary subdivisions, taking care to avoid breaks in the range of a “skip” type of instruction, in transfer vectors and in the range of “relative-to-current-address” types of instructions. The entry point for each subdivision is then given a location symbol (“A”, “B”, “DATA 1”, etc.) and a transfer instruction inserted at the end of each subdivision, directing transfer to the next succeeding subdivision. These successions, of course, are logical, and need not be physical. The rules for such subdividing are sufficiently simple that they could be built into an assembler or compiler and thus be done automatically. The successive vertical positions of the subdivisions, of course, represent successive physical locations in the internal memory of the computer.
In accordance with the invention, at least one scrambled version of the program is also prepared for use with the arrangement of FIG. 1. One such scrambled version of the program mapping of FIG. 2A is shown in FIG. 2B. In FIG. 2B, the logically similar program subdivisions are labeled with the same reference numerals, but primed in FIG. 2B. Thus, the second program subdivision in FIG 2B is subdivision 32', corresponding to the third subdivision 32 in FIG. 2A. Not only are the program instructions (30, 31 and 32) subdivided and scrambled (30', 31' and 32'), but the data blocks (33, 34 and 35) are likewise subdivided and scrambled (33', 34', and 35'). Moreover, instruction subdivisions and data subdivisions may be intermingled. The single instruction block 36 (a single transfer instruction) remains the first block in each version, however, to insure the beginning of execution at the logical beginning of the program.
The scrambled order shown in FIG. 2B is only one of many possible scrambled orders. Any other order is equally suitable provided only that a substantial degree of actual scrambling is involved. One simple scrambling technique which can be easily implemented automatically in an assembler or compiler is a simple reversal of order of the subdivisions. Other simple scrambling rules can likewise be easily implemented to take place automatically.

Claims 1, 4, and 5 are exemplary:

1. An error detection system for computers comprising

a memory having a first portion storing a first sequence of program instructions and data items and having a second portion storing a second sequence of program instructions and data items,
said second sequence being substantially identical to said first sequence except for the ordering of the respective sequences of said instructions,
means for executing said program instructions from each of said sequences, and
means for comparing intermediate results of said executions, (paragraphing ours).

4. The method of detecting programming errors in a computer program comprising the steps of

(1) mapping said program into storage in at least two substantially different sequential orders,
(2) executing both said substantially different sequential orders for said program, and
(3) comparing intermediate results of step (2) for mismatches.

5. Apparatus for detecting programming errors in a computer program comprising

(1) means for mapping said program into storage in at least two substantially different sequential orders,
(2) means for executing both said substantially different sequential orders of said program, and
(3) means for comparing the intermediate results of said executing means for mismatches.

The Rejection

The board sustained the examiner’s rejection of all the claims as based on an inadequate disclosure, relying upon the first paragraph of 35 U.S.C. § 112.

The examiner stated:
The specification is deemed sufficient in setting forth the apparatus for carrying out the proposed error detection arrangement once the two versions of a hypothetical program to be debugged are stored in memory and ready for execution and comparison of certain intermediate results. However, the means and method of carrying out the essential “scrambling” process have not been disclosed in such full, clear, concise, and exact terms as to enable one of ordinary skill in the art to make and use the invention ....
* * * * * *
As stated previously, the charts of Figures 2A and 2B and the written portion of the specification represent no more than a graphic illustration of two different mapping orders of a hypothetical computer program and can be considered in no manner to represent an algorithm upon which an assembler or compiler program may be based. Appellant further contends that an assembler or compiler program . for “scrambling” the sequence of instructions in a program to be debugged would be obvious to one of ordinary skill in the art and cites a portion of the book The Language of Computers, by B. A. Galler, as a basis for this contention. It should be noted that the referenced textual material describes the process of arranging sets of items such as numbers, letters, etc. into some particular order. The desired order may be simply arranging numbers into increasing numerical value. Thus, the scope of the textual material is limited to teaching the sorting or arranging of like items into a desired sequence. Appellant’s claimed means for mapping, however, appears to be more than the mere sorting of like items into a desired se-quenc[e]. Reference is made in appellant’s application to limitations imposed upon the “scrambling” process which results in a procedure of higher complexity than a simple sort procedure. Prior to even considering the reordering of program sequences in the original version of the program to be debugged, the matter of selecting appropriate and workable subdivisions into which the program is broken down must be considered. The considerably higher degree of complexity in practicing the instant invention over that of performing a simple sort routine is pointed out by such limitations as requiring that the two versions of the program be “logically identical” * * * and further that if the subdivisions are not “natural” divisions of the program, then care must be taken to avoid breaks in the range of the “skip” type of instruction, in transfer vectors and in the range of “relative-to-current-address„ types of instructions * * *. Thus, the contention that simple sorting techniques are well known in the art is not convincing in determining the adequacy of disclosure relative to the obviousness of an assembler or compiler program for implementing the “scrambled” mapping of a computer program such as claimed in the instant disclosure.

The board stated that after reviewing the rejection in light of the comments of both appellant and the examiner, it also concluded that the disclosure was not enabling within the meaning of the first paragraph of 35 U.S.C. § 112. However, the board also made the following additional comments which expressed its doubts as to the sufficiency of the disclosure :

Although appellant asserts that there are many different “scrambling” techniques that could be used to practice his invention the only one set forth in the application is that'illustrated in Figs. 2A and 2B. Appellant asserts * * * that the scrambled and unscrambled programs are “logically identical.” Of course, the location in memory of each individual instruction and segment of data differs in each program so that each instruction that transfers program control or fetches data must have the same logical, relative address if the two programs are to be logically identical. Appellant has not told us nor is it in any way apparent to us how two programs that are “logically identical” could operate differently or could produce different results if the error in the original program were a logical error as in the ease of a “wild” transfer * * * or of a “wild” fetch •x- * *
Assuming, as appellant contends, that it would be only an elementary programming procedure to prepare a computer program that would convert the original program into the scrambled program, this implies that there is a one to one conversion between the two sets of addresses and the two sets of instructions and data, otherwise they would not be logically identical.
For example, if a programming error were made by requesting a fetch from the next adjacent memory location to the correct one this incorrect or “wild” fetch address would of necessity be translated into the corresponding address of the previously inaccurate data, so that the scrambled program should give the same results as the original program without detecting the logical error.
*****■•»
Since appellant has not given us an algorithm for the scrambling which could carry out the purpose of detecting logical errors in a computer program and we are not aware of such an algorithm, we find appellant’s specification defective in not being in such full and exact terms as to enable a person skilled in the art to make and use appellant’s program error detecting system or method.

Appellant then submitted a detailed Request for Reconsideration attempting to demonstrate the incorrectness of the statements made by the board, supra. In so doing, appellant submitted a “specific coded example” demonstrating how a typical error could occur and how it is detected using appellant’s invention. This example was also relied upon to rebut comments made by the board which appellant considered to constitute “another ground of rejection based possibly on an alleged failure to exhibit operativeness (utility) in the sense of 35 U.S.C. 101.” On reconsideration, the board denied having made any such rejection and commented that the newly offered evidence would not be considered.

OPINION'

In deciding the instant controversy, we are guided by the following principle:

[A] specification disclosure which contains a teaching of the manner and process of making and using [an] invention in terms which correspond in scope to those used in describing and defining the subject matter sought to be patented must be taken as in compliance with the enabling requirement of the first paragraph of § 112 unless there is reason to doubt the objective truth of the statements contained therein which must be relied upon for enabling support. Assuming that sufficient reason for such doubt exists, a rejection for failure to teach how to make and/or use will be proper on that basis; such a rejection can be overcome by suitable proofs indicating that the teaching contained in the specification is truly enabling. In re Marzocchi, 439 F.2d 220, 58 CCPA 1069 (1971).

Upon examining the reasoning set forth by the examiner, we have concluded that there was a reasonable basis for questioning the adequacy of the instant disclosure which does not include sufficient information for implementing appellant’s mapping or “scrambling” of a computer program.

The evidence submitted to overcome the examiner’s reasoning is found not to be responsive to such criticism. Appellant’s reliance upon the book by Galler, supra, may well establish that simple sorting techniques are well known in the programming art. However, as the examiner noted, appellant’s invention requires more than just a simple sorting procedure. The disclosure states that in scrambling subdivisions of programs, which are not natural divisions such as subroutines, care must be taken to “avoid breaks in the range of a ‘skip’ type of instruction, in transfer vectors and in the range of ‘relative-to-current-address’ types of instructions.” Based upon the meager record before us, we cannot conclude that the simple sorting procedures of the Galler book demonstrate that one of ordinary skill in the art would be able to make and use an algorithm for achieving the apparently more complex “mapping” of appellant’s invention.

Appellant has not only failed to offer any evidence to refute the comments made by the examiner with respect to the necessary precautions to be taken when the program is not subdivided into natural subdivisions such as subroutines, but appellant in all of his arguments has ignored those comments and has taken the position that only natural program segments or subroutines are relevant to our inquiry of whether or not the disclosure is enabling. In his brief, appellant stated:

Whether the error detecting method and apparatus will detect errors when special circumstances, e. g., the existence of other than “natural” program segments (subroutines are the most natural segments) is irrevelant [sic]; such special circumstances are not recited in the claims.

The fallacy of such an assertion, and all of appellant’s arguments based thereon, is apparent. The claims do embrace scrambling of other than natural program segments, or subroutines, insofar as the claims are not in any manner limited to scrambling only natural program segments. Furthermore, appellant’s specification states that the program subdivisions “may be entirely natural divisions ... or may be entirely arbitrary subdivisions.” (Emphasis added).

For the foregoing reasons, the decision of the Patent Office Board of Appeals sustaining the rejection of claims 1-8 under the first paragraph of 35 U. S.C. § 112 is affirmed.

Affirmed.

MILLER, Judge

(dissenting).

I believe the majority opinion demands more disclosure by appellant than is required to satisfy 35 U.S.C. § 112.

The majority impliedly concedes that the method and apparatus for scrambling by creating breaks at natural subdivisions are sufficiently disclosed. However, it affirms the board because another method (using arbitrary subdivisions) is not, in its view, sufficiently disclosed.

The question thus raised is whether the scope of enablement provided one of ordinary skill in the art by the disclosure is commensurate with the scope of protection sought by the claims. In re Geerdes, 491 F.2d 1260, (Cust. & Pat.App.1974).

The claims are not restricted to any one method for scrambling; nor is the scope of the specification, which states (emphasis supplied):

The scrambled order shown in FIG. 2B is only one of many possible scrambled orders. Any other order is equally suitable provided only that a substantial degree of actual scrambling is involved. One simple scrambling technique which can be easily implemented automatically in an assembler or compiler is a simple reversal of order of the subdivisions.

Appellant has repeatedly stated that the claims encompass scrambling by creating breaks at natural subdivisions, such as simple reversal, without response from the Patent Office showing wherein his specification is not clearly enabling to a person skilled in the art. Such scrambling is claimed to work, and there is no reason to doubt that it does. Under In re Marzocchi, 439 F.2d 220, 58 CCPA 1069 (1971), such a statement must be accepted as true.

That the claims are not restricted in scope to a method of scrambling demonstrates that appellant regards the point of novelty of the present invention to be the scrambling, not the particular method of scrambling. See In re Halleck, 422 F.2d 911, 57 CCPA 954 (1970). All that is required is that the scrambling be done properly. The instructions in the specification on how to use the arbitrary method of subdivision teach one skilled in the art the problems to avoid in choosing arbitrary breaks, bearing in mind that the easy method of subdivision at natural breaks is always available to one of ordinary skill in the art.

Furthermore, it is not the function of the claims to exclude the aforesaid problems or improper methods of scrambling. In re Dinh-Nguyen, 492 F.2d 856 (Cust. & Pat.App.1974).

The majority opinion raises the question whether disclosure of the arbitrary method of scrambling has an adverse effect on the specification, which otherwise provides enablement supporting the scope of the claims under 35 U.S.C. § 112. The answer is that, having met the statutory requirements for disclosure, nothing more is required. Thus, it is unnecessary to disclose an example of an alternative embodiment within the scope of the claims. In re Anderson, 471 F.2d 1237 (Cust. & Pat.App.1973). Superfluous portions of a specification which are unnecessary for the requirements of 35 U.S.C. § 112 are legally irrelevant, and, technically, the examiner could require that they be cancelled. Accordingly, whether the arbitrary method of subdivision is sufficiently disclosed is of no effect.

All of this does not deny that problems may be encountered by claims in areas of unpredictable technology. However, the area of technology involved here is not so complex and unpredictable as to justify the majority’s departure from our opinion in In re Dinh-Nguyen, supra. While the claims broadly cover all methods (and means) of scrambling, there is no evidence of record that appellant is not entitled to that protection. Moreover, claims are intended for future, as well as present, application.

The protection granted, if appellant’s claims are allowed, gives him the right to exclude others from making, using, or selling the invention. 34 U.S.C. § 154. No right is granted which includes the right to use. Thus, a subsequent inventor of a new and unobvious'*method of scrambling may obtain a patent which, by the terms of its grant, is subservient to appellant’s patent. However, the subsequent inventor would have the right to exclude appellant from making, using, or selling the later invention. For that reason, broad protection may be granted here without requiring disclosure of every embodiment within the scope of the claims.

I would reverse.

      . Serial No. 610,837, filed January 23, 1967.

      . We agree with appellant that the board’s reasoning, supra, may only be construed as doubting the utility or operativeness of the claimed invention. Although that reasoning could have led to a rejection under 35 U.S.C. § 101, it can also be a basis for a rejection under the how-to-use provision of § 112. In re Fouche, 439 F.2d 1237, 58 CCPA 1086 (1971). However, since the solicitor in his brief has assumed that appellant’s invention is both useful and subject to patenting within the meaing of § 101 — a position which we regard as conceding the operativeness of appellant’s invention for purposes of this appeal — and since appellant’s rebuttal to the board’s comments on this issue was not considered by the board, we have not considered the additional comments expressed by the board with regard to any alleged inopera-tiveness of appellant’s invention.

      . Appellant argues that since claims 1-3 do not recite such a mapping or scrambling means, those claims have an adequate supporting disclosure assuming, arguendo, that such a means is not adequately disclosed. Suffice to say that in analyzing claim 1, which states that “said second sequence being substantially identical to said first sequence except for the ordering of the respective sequences of said instructions,” not in a vacuum, but in light of the disclosure, it is clear that claims 1-3 seek a scope of protection for which the scope of enablement must include a sufficient teaching of the means for reordering or mapping the second sequence. In re Moore, 439 F.2d 1232, 58 CCPA 1042 (1971).

      . But for the reference to the Galler book, the record consists solely of the arguments and opinions of appellant’s attorney — there are no affidavits in the record before us which set forth any facts whatsoever. Factual affidavits could have certainly been of help as, at least, some evidence on the question of enablement. In re Brandstadter, 484 F.2d 1395 (Cust. & Pat.App.1973).

      . It appears that both the board and the examiner regarded appellant’s invention as more complicated and narrow in scope. However, what the board and examiner think regarding the scope of the invention is not the standard set forth in 35 U.S.C. § 112, second paragraph.

      . More may, however, be required for purposes of 35 U.S.C. § 103. In re Davies, 475 F.2d 667 (Cust. & Pat.App.1973).


author: GODBOLD, Circuit Judge:

text:
    Catherine L. MAKRES and Seymour B. Shiffman, Plaintiffs-Appellants, v. Reuben O’Donovan ASKEW, Governor of the State of Florida, and Robert Shevin, Attorney General for the State of Florida, Defendants-Appellees.
    No. 73-2816.
    United States Court of Appeals, Fifth Circuit.
    Sept. 18, 1974.
    Richard A. Bokor, Tampa, Fla., Larry H. Spalding, Sarasota, Fla., for plaintiffs-appellants.
    Robert L. Shevin, Atty. Gen., Jerry Ernest Oxner, Asst. Atty. Gen., Tallahassee, Fla., Baya Harrison, Asst. Atty. Gen., Tampa, Fla., Herbert T. Schwartz, Sp. Asst. Atty. Gen., Gainesville, Fla., for defendants-appellees.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   GODBOLD, Circuit Judge:

Catherine Makres and Seymour Shift-man, appellants in this consolidated class action, wished to secure divorces in Florida state court. They filed separate suits, later consolidated, in the federal District Court alleging that they were bona fide Florida residents who would file for divorce but for Fla.Stat. § 61.-021, which requires that “the party filing the [divorce] proceeding must reside six months in the state before filing the petition.” They claimed that § 61.021 interfered with their interests in unimpeded travel and access to courts, and that therefore it was unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment. They sought a declaratory judgment to that effect and an injunction against its enforcement.

The District Court found that the statutory residency requirement impinged upon interstate travel and must, therefore, be examined under the compelling interest test rather than the rational basis test. It held the state’s interests were compelling and dismissed. We affirm.

In a pretrial order the state stipulated that appellants were bona fide Florida residents. We understand that to mean that they were domicilaries, see Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870 (1948) (establishment of residence with bona fide intent to make it permanent is prerequisite to jurisdiction), that is, the state authorities responsible for enforcing Florida law would view them as meeting the traditional basic requirement for state court jurisdiction to decree an ex parte divorce. Absent, however, was the six months of in-state residence required by § 61.021. Under Florida case law, unless § 61.021 is satisfied Florida courts lack power to decree a divorce. Kutner v. Kutner, 159 Fla. 870, 33 So.2d 42 (1948). The section creates a statutory barrier higher than that posed by the requirement of traditional domicile. See Hostler v. Hostler, 151 So.2d 672 (Fla.App.1963); Brown v. Brown, 123 So.2d 382 (Fla.App.1960) (where wife was domiciliary but not six-month resident, she could not file for divorce). Thus it is clear that the section divides the class of domiciliarios into two groups, those who have resided in the state for at least six months, and those who have not. The former are granted access to divorce courts and the latter are denied it. The impact of this grouping upon the right of interstate travel is clear. Dunn v. Blumstein, 405 U.S. 330, 339-341, 92 S.Ct. 995, 31 L.Ed.2d 274, 282-283 (1972). Thus, the District Court correctly held the compelling interest test applicable, and the question becomes one of whether that court correctly held the test to have been met.

The starting point of our analysis is Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) [Williams II]. In Williams II the petitioner, theretofore domiciled in North Carolina, went to Nevada, where he obtained an ex parte divorce, immediately remarried, and returned to North Carolina to live with his new wife. Prosecuted for bigamous cohabitation, he raised the divorce as a defense. The North Carolina court permitted the prosecutor to attack Nevada’s jurisdiction to grant the divorce. Petitioner was convicted. The Supreme Court, in a celebrated opinion by Justice Frankfurter, upheld the conviction, establishing that the jurisdictional fact of domicile, though found favorably to the divorce-seeking party in the courts of the divorcing state [Nevada], may be redetermined in the courts of another state [North Carolina].

Because of Williams II, every divorce decree is exposed to the possibility of future collateral attack in a different state. The attack can arise in a variety of contexts — a criminal charge of bigamy (as in Williams II), questions of devolution of property upon death, assertion of power over a supposedly dissolved marriage in later divorce or support proceedings, legitimacy of children born of subsequent unions of either or both spouses with others, and so on. When an attack does occur, the effects upon those relying upon the validity of the divorce range from irksome to disastrous. Dire consequences may fall upon innocent bystanders, as when the children of parents remarried to others find themselves regarded as illegitimate. Nor are the ill effects confined to persons who secure divorces soon after in-migrating from another state. If a state becomes known for granting “quickie” divorces, the likelihood of attack on all its divorces increases, even those secured by long-time domiciliaries. Even unsuccessful attacks cause serious aggravation, and, to an extent, disrespect for a state’s divorce decrees tends to debase the coinage of all its judicial decrees.

We hold that the state of Florida, as the embodiment of all its people, has a compelling interest in minimizing the likelihood that its divorce decrees will be challenged in other states and insuring the failure of any challenges that are mounted.

Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil . . . Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. . Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises.

Williams II, 325 U.S. at 229-230, 65 S.Ct. at 1095, 89 L.Ed. at 1581-1582. Domicile is, however, a "rather elusive relationship between person and place.” Id. at 233, 65 S.Ct. at 1097, 89 L.Ed. at 1589. A state can construct means to make less slippery the jurisdictional predicate for the divorces it grants, imparting to them a verity that tends to safeguard them against the suspicious eyes of other states’ prosecutorial authorities, the suspicions of private counsel in other states, and the post-decree dissatisfactions of parties to the divorce who wish a second bite. Such a reputation for validity of divorce decrees is not, then, merely cosmetic. It exists because residence for some non-transitory period, though not a sine qua non of domicile, is at least more often than not concomitant to domicile. In examining divorce decrees in the light of interstate relations it is too easy to focus upon the prevention of sham assertions of domicile. We think it is fair to accept that in Florida and almost all states divorces are granted at the “real” domicile of the marriage partners rather than at sham domiciles or those acquired by one or both partners for the purpose of divorce. Thus the protection that Florida seeks to provide redounds primarily and affirmatively to the benefit of its “real” domiciliaries, the incidents of whose marriages — children, property, etc. — will in more cases than not be Florida-centered.

Also, as pointed out by the District Court in its opinion, 359 F.Supp. at 1231, under a federal system each state owes an obligation to the other states to make a record that will tend to withstand collateral attack and merit full faith and credit. The courts, overburdened as they are, are served by means which minimize needless collateral litigation concerning the validity of foreign divorce decrees.

In Wymelenberg v. Syman, 328 F.Supp. 1353 (E.D.Wis.1971), a three-judge District Court brushed aside what it termed the interest of the state of Wisconsin in not having a reputation as a divorce mill, and suggested that there was little danger to the state “provided that the law of domicile is followed in determining jurisdiction over a divorce matter.” 328 F.Supp. at 1356. This overemphasizes the interest of the state as cosmetic when in fact it is much deeper, and underemphasizes the entwinement of the issues of residence and domicile.

The District Court opinion suggested that the stringency of the compelling interest standard may vary in proportion to the relative importance of that personal interest whose impairment triggers the test by burdening interstate travel. Thus, in the District Judge’s view, a case in which interstate travel is burdened by deprivation of voting rights should be considered under a stricter standard than a case where the burden on interstate travel is imposed by denial of access to divorce courts. There may be support in recent Supreme Court cases for ranking various travel-burdening deprivations and adjusting the strictness of the scrutiny accordingly. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306, 315-316 & n. 15 (1974) (free nonemergency medical care), citing Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (lower tuition rates at state university; permanent irrebuttable presumption struck down but one-year waiting period upheld). Cf. also Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). But we do not rely upon this approach. For the moment we treat the compelling interest standard as unitary and inflexible and we hold that the District Court did not err in holding that Florida’s six-month requirement, because needed to promote the state’s compelling interest, does not violate Fourteenth Amendment guarantees.

We intimate no views on the validity of longer durational requirements.

Affirmed.

      . Makres claimed that she became a bona fide Florida resident July 13, 1971, and that her husband resided in New York. She filed her complaint in federal court August 25, 1971. It appears her suit was delayed pending the Supreme Court’s decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Eventually it was revived and consolidated with Shiftman’s suit. Shiffman claimed bona fide residency as of December 30, 1972. His wife resided in Florida in a different city. He filed Ms federal complaint January 19,1973.

      . Upon the ground that an injunction was unlikely to be granted, no three-judge district court was convened.

      . Shiffman v. Askew, 359 F.Supp. 1225 (M.D.Fla.1973).

      . See Note, 51 Texas L.Rev. 585, 593-594 & nn. 37-38 (1973).

      . We think it is worth noting, although it was not made a ground of the decision, that the residence period required by the Wisconsin statute was two years.

      . Thus, we need not attempt to assign a rank to the deprivation suffered by appellants in the present ease. Cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).


author: PER CURIAM.

text:
    UNITED STATES, Appellee, v. Mark David Albert KLOTZ, Appellant.
    No. 74-1069.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided July 19, 1974.
    Rehearing En Banc Denied Oct. 1, 1974.
    See 503 F.2d 1056.

      Bruce W. Okney, Minneapolis, Minn., for appellant.
    Thorwald H. Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for appel-lee.
    Before GIBSON, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

Defendant-Mark David Albert Klotz was tried to the bench and convicted of knowingly refusing and evading registration in the armed forces in violation of 50 U.S.C. App. § 462. He appeals, dence that defendant ever received actual notice of his obligation to register for military draft but merely presented evidence describing general dissemination of information about military registration requirements throughout state contending that the evidence adduced by the Government did not prove that he knowingly failed to register. We agree and reverse the conviction.

The evidence as introduced by the Government at the trial disclosed that Klotz did not register with the Selective Service System for more than two years following his eighteenth birthday. This registration came about when the Minnesota Selective Service Office initiated an inquiry to defendant in October, 1972, seeking to learn whether Klotz had registered for the draft, and, if not, when he would do so. Klotz thereupon registered with the Selective Service System on October 25, 1972, in Copenhagen, Denmark. In addition to these facts, the Government introduced testimony describing the general dissemination of information about registration requirements throughout the State of Minnesota. Klotz did not testify, and the Government introduced no evidence that Klotz had ever received actual notice of his obligation to register for the military draft before October of 1972.

It is a well-settled principle that in prosecuting suits under § 462 for knowingly failing or neglecting to perform a duty under the Selective Service Act the Government must prove a culpably criminal intent. See Smith v. United States, 391 F.2d 543, 545 (8th Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 168, 21 L.Ed.2d 145 (1968); United States v. Rabb, 394 F.2d 230, 231-232 (3d Cir. 1968); Graves v. United States, 252 F.2d 878, 881-882 (9th Cir. 1958); United States v. Hoffman, 137 F.2d 416, 419 (2d Cir. 1943) (under Selective Training and Service Act of 1940).

Recently the Tenth Circuit aptly summarized this rule as follows:

To knowingly fail to perform a duty a person must be aware of the duty and deliberately or wilfully neglect to perform it. United States v. Williams, 421 F.2d 600, 602 (10th Cir. 1970).

Criminal intent may be inferred from proof of facts and circumstances which establish that the defendant possessed knowledge of an obligation under the military draft laws which he did not perform. Silverman v. United States, 220 F.2d 36, 40 (8th Cir. 1955).

In resolving the criminal intent issue in this case, however, the district court said:

The government was able to show the general publicity given to registration requirements through the media and by the posting [of] bulletins and disseminating information through high schools. It does not strain this court’s thinking to find beyond a reasonable doubt that defendant knew as have all competent 18 year olders of the requirement to register for the draft on reaching his 18th birthday. It needs no citation of authorities to announce the familiar principle that all men are presumed to know the law and their duties thereunder and this presumption prevails unless in some way rebutted.

The determination of defendant’s intent here rested on a presumption, and not on proof of the essential fact of knowledge necessary to sustain the conviction. Accordingly, under the decided cases, we must set aside the conviction.

Reversed.

      . 50 U.S.C. App. § 462 reads in part:
      (a) Any [person] * * * who otherwise evades or refuses registration or service in the armed forces or any of the requirements of this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment[.]