author: HASTINGS, Senior Circuit Judge.

text:
    REX CHAINBELT INC., Plaintiff-Appellee, v. BORG-WARNER CORPORATION, Defendant-Appellant. REX CHAINBELT INC., Plaintiff-Appellee, v. CARMAN INDUSTRIES, INC., Defendant-Appellant.
    Nos. 71-1596, 71-1597.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept.. 28, 1972.
    Decided April 26, 1973.
    Rehearing Denied May 18, 1973.

      Thomas F. McWilliams, Malcolm S. Bradway, Chicago, Ill., Basil H. Lorch, Jr., New Albany, Ind., for defendants-appellants.
    Albert H. Pendleton, Ralph E. Church, Jr., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   HASTINGS, Senior Circuit Judge.

On October 5, 1965, George D. Dumbaugh. filed a patent application, Serial No. 493,197. Patent No. 3,251,457 issued to him on May 17, 1966. The Dumbaugh patent has been described as being generally directed to “the varying of the feed rates of vibratory conveyors by varying the voltage applied to a squirrel cage type of motor which drives the feeder or conveyor.” Alvin G. Westerman applied for a patent on October 26, 1965. His application bears Serial No. 505,284. Pursuant to 35 U.S.C.A. § 135, the Commissioner of Patents determined that the Westerman application interfered with the Dumbaugh patent and, on November 21, 1966, gave the requisite notice to the parties.

Pursuant to Rule 205(a) of the Rules of Practice in Patent Cases, 37 C.F.R. § 1.205(a) (1972), Title 35, U.S.C.A., Westerman, the applicant party, amended his application by copying verbatim the eight apparatus and four method claims of Dumbaugh, the patentee party, and adding them to his own application. The copied claims were designated as the counts of Interference No. 95,710, which was referred to the Board of Patent Interferences (Board) for resolution. The Board is the tribunal within the Patent Office charged by Congress with the exclusive responsibility for determining “the question of priority of invention.” 35 U.S.C.A. § 135. Because Dumbaugh’s application had been filed prior to Westerman’s, Dumbaugh was- the senior party before the Board. In the interference proceedings, therefore, it was incumbent on Westerman, as the junior party, to prove his priority of invention by a preponderance of the evidence. Sanford v. Kepner, 3 Cir., 195 F.2d 387, 389 (1952), aff’d, 344 U.S. 13, 73 S.Ct. 75, 97 L.Ed.12. The Board’s decision of April 30, 1970, awarded priority to Dumbaugh.

Plaintiff then brought the instant action in the district court under 35 U.S. C.A. § 146 to review the Board’s award. The court on April 20, 1971, upon the record made' before the Board and a small amount of additional testimony adduced by plaintiff in the district court, set aside all the Board’s findings and awarded priority of invention to Westerman. We reverse the judgment of the district court.

I.

We are faced with the threshold question of whether the district court applied the correct standard of review. An action under § 146 is of a hybrid nature. It has one element of a trial de novo in that either party is permitted to introduce evidence which was not before the Board. Nevertheless, it is clear under the controlling case of Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657 (1894), that a § 146 action is essentially of an appellate character and that the scope of review is quite narrow:

“Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Id. at 125, 14 S.Ct. at 773 (emphasis added).

In 1916, Circuit Judge Mack, speaking for our court in Gold v. Gold, 7 Cir., 237 F. 84, set forth a standard of review for district courts to follow in these cases which, with only the modifications made necessary by intervening amendments to the statute, has continuing vitality:'

“The final decision in the interference proceedings, while not conclusive, is nevertheless of the utmost importance. The Court of Appeals [of the District of Columbia] acts therein as the highest patent tribunal; like the Patent Office officials, its members acquire a wide experience in these intricate questions, the solution of which demands expert knowledge and training. Moreover, unlike the ex parte grant of patents, interference proceedings are contested between parties in interest, and, while conducted by administrative officials, are quasi judicial in their nature.
“The District Court, in this statutory proceeding to review the decree rendered in a contested case by a court acting as the final expert administrative governmental department, exercises a jurisdiction somewhat analogous to, though broader than, that exercised by a court of equity on a bill to set aside a judgment at law — broader, in that the evidence may go to the merits of the original controversy; but, though a re-examination of the evidence is not precluded, the court must be thoroughly convinced that it furnishes no substantial support whatever for the decree before the conclusions reached by the Court of Appeals of the District of Columbia will be overturned.
“And while this seems obvious enough, when the re-examination involves merely a weighing of the evidence and a consideration of the credibility of witnesses, as in the ordinary priority of invention cases, it is equally true when questions peculiar to the patent law, such as the construction and scope of the patent application, are involved. For it is just such questions that the administrative tribunal is pre-eminently qualified to solve. Even then, of course, the court is not absolved from the duty of examination; but, unless it be perfectly clear that the final expert administrative body, the Court of Appeals, erred, relief should not be granted * * * .” Id. at 86.

It is plain from the district court’s memorandum opinion of May 5, 1971,-that it did not apply the proper criterion. After finding that it had jurisdiction over the parties and of the subject matter of the action, the court said: “The plaintiff has maintained its burden of proof of the essential elements and alleged facts of the complaint by a preponderance of the evidence * * * .” We find no basis for accepting plaintiff’s contention that the district court meant this statement to apply only to the ten “formal” paragraphs of the complaint, but not to the eleventh paragraph which alleged that the Board’s award had been erroneous. The district court’s decision cannot stand, therefore, unless as we apply the “thorough conviction” test laid down in Morgan v. Daniels, it appears to us that the district court reached the correct result despite its use of the wrong standard.

II.

It has long been accepted that the question of priority of invention is the only matter within the competence of the Board of Patent Interferences. See Ferree v. Shephard, 384 F.2d 1019, 55 C.C.P.A. 848 (1967). This restriction of the Board’s jurisdiction does not, however, prevent it from determining certain matters “ancillary” to the basic question of priority. The Board’s decision on the ancillary question of Westerman’s right to make the counts of the interference was one of the independent grounds for its award. Dumbaugh raised the question initially during the usual motion period by moving to dissolve the interference. The Primary Examiner denied Dumbaugh’s motion, holding that Westerman’s disclosure “comprehends within its confines the AC squirrel cage motor.” In so doing, however, the Primary Examiner applied the wrong rule of law. As the Board correctly pointed out in its opinion, “a sufficient basis [to support the copied claims] is provided only if the specification is so worded that the necessary and only reasonable construction to be given the disclosure by one skilled in the art is one which will lend clear support to the claim” (emphasis in original). The question is not whether the applicant party’s application can be read to include the particular device of the patent, but whether it necessarily discloses the device. Gubelmann v. Gang, C.C.P.A., 408 F.2d 758, 766 (1969); Dreyfus v. Sternau, 357 F.2d 411, 415, 53 C.C.P.A. 1050 (1966); Jepson v. Coleman, 314 F.2d 533, 536, 50 C.C.P.A. 1051 (1963); Crome v. Morrogh, 239 F.2d 390, 392, 44 C.C.P.A. 704 (1956).

Measuring the Westerman application by this criterion, the Board concluded that it failed to disclose as a necessary element the use of an A.C. squirrel cage induction motor. Rather, the Board found that the application might also be read to teach the use of a wound rotor motor — the other type of A.C. induction motor. Plaintiff expended most of its energies before the district court attempting to refute the Board’s conclusion by evidence of the character and amount required by Morgan v. Daniels. Thus, it sought to demonstrate by the testimony of experts that the phrase “ordinary induction motor,” which appeared in the Westerman application, would be read by one skilled in the art to signify a squirrel cage motor to the exclusion of any other type. Furthermore, plaintiff contended and attempted to prove that the symbol employed in the drawings accompanying the Westerman application disclosed a squirrel cage motor to the exclusion of any other type.

With respect to the meaning of “ordinary induction motor,” plaintiff’s expert witnesses asserted that squirrel cage motors are ordinary in the sense that they are the induction motors most usually encountered by manufacturers who employ induction motors in the course of their business. Defendants’ experts testified that wound rotor motors are also ordinary in the sense that they are common, simple and relatively uncomplicated. On cross-examination, neither side’s witnesses were willing to state that the opposing witnesses were wrong in their testimony. The conclusion to be drawn from this testimony comports with the result reached by the Board, namely, that the phrase “ordinary induction motor” does not necessarily reveal a squirrel cage motor.

However, the testimony with respect to the symbol used in the drawings cuts the other way. As the Board pointed out in its opinion, “drawings alone may be sufficient to support a count — if there are no contradictory disclosures in the specification and the drawings are unambiguous.” The additional testimony before the district court, which was not, of course, available for the Board to consider, establishes clearly and with sufficient force to compel “thorough conviction” that the symbol used in the Westerman application would teach the exclusive use of a squirrel cage motor to one skilled in the art. The new evidence before the district court was uncontradicted that the symbol used in the Westerman application was the one approved by the American Standards Association for depicting an A.C. squirrel cage induction motor. Although the Association approved the same symbol to represent other elements in an electrical system (a generator, a repulsion motor or a rotary phase converter, for example), from the drawing as a whole it would be obvious to one skilled in the art that the symbol was meant to represent a motor driving a load. Aided by the language of the specification in Westerman’s application, then, the symbol would necessarily disclose a squirrel cage rather than a wound rotor motor. The Board erred in finding otherwise, and the district court was correct in overruling this finding. However, finding that Westerman had the right to make the counts merely gives plaintiff the right to go forward before the Board and does not reach the ultimate question of priority of invention. We next consider the important central question of priority.

III.

In conducting our review of the district court’s action in these interference proceedings, we have attached paramount significance to the roles to be played by the Board and the district court in the factfinding process. The record shows that plaintiff’s evidence before the district court touched mainly on the question of Westerman’s right to make the interference counts. What little evidence plaintiff introduced relative to actual priority of invention was largely cumulative of that before the Board. Plaintiff’s failure to present “new” evidence before the district court on this issue did not of itself require the district court to uphold the Board’s award. Nevertheless, consistent with “thorough conviction” test enunciated in Morgan v. Daniels, we think that the less “new” evidence there is before the district court, the more blatant the Board’s factual errors must have been before the district court is justified in reversing the Board’s award. the

It requires no citation of authority to state that invention has not occurred until the subject of the invention has been both conceived and reduced to practice. In the absence of convincing proof of earlier dates, the date of application for a patent is presumed to be the date of constructive conception and reduction. It is for this reason that the earlier applicant is considered the senior party in an interference, for until proof is taken, he is the first inventor by benefit of this presumption. If the parties to an interference are not content to rely on their application dates (and the junior party cannot rely on his if he is to prevail), they have the opportunity during the interference proceedings to establish earlier dates by clear proof. The primary date to establish is that of conception, since 35 U.S.C.A. § 102(g) permits the party with the earlier conception date to prevail if he can show “reasonable diligence” in later reducing the invention to practice. In the present proceedings it is uneontested that Dumbaugh conceived the invention on July 8, 1965, and reduced it to practice on July 27, 1965. The question of priority of invention turns, then, on plaintiff’s proof that Westerman conceived the invention at some particular date prior to July 8, 1965. Specifically, under the facts of this case, plaintiff must demonstrate convincingly that Westerman conceived the invention now in issue in late 1959 and early 1960 in the course of correcting a feeder malfunction at a customer’s plant and of performing certain experiments incidental thereto.

In 1959, plaintiff’s predecessor, Carrier Conveyor Corporation (Convey- or), of Louisville, Kentucky, designed and marketed several different types of vibratory feeders, including its Amplitrol model. The Amplitrol feeder embodied a free mass, natural frequency vibratory system of a type well known to the art. The three main components of this system were the exciter mass (an A.C. squirrel cage induction motor with an eccentric weight mounted on each end of its shaft), the feeder mass (a trough containing a load of particulate matter) and a set of pneumatic springs (bags of compressed air) connecting the two masses. The squirrel cage motor was chosen for use because of its durability and its minimal maintenance requirements. The speed of this motor, when not driving a load or when driving a small load relative to its size, was known to be adjustable by controlling the voltage applied to it. But it was thought in the art that, because of load torque requirements and the limited thermal capability of a squirrel cage motor, motor speed could not be adjusted within the context of a vibratory system without burning out the motor. As a practical matter, the fact that motor speed could not be adjusted meant that the commercially critical step of controlling the feed rate off the end of the trough could only be accomplished by varying the stiffness of the springs. This accounted for the presence in the Amplitrol feeder of pneumatic springs, rather than helical steel coils or other common type of spring. The stiffness of the springs, and hence the feed rate, of the Amplitrol feeder was' controlled by increasing or decreasing the compressed air pressure in the pneumatic springs.

In August 1959, Conveyor sold two Amplitrol feeders to the American Tobacco Company (American Tobacco) for use in its Richmond, Virginia, plant. The squirrel cage motors in the feeders sold to American Tobacco had internal wiring connections that could be connected in such a way that the machine could operate on either 220 volts or 440 volts of electrical potential. Before being shipped to American Tobacco, the feeders had been tested at Conveyor’s plant, which had a 440-volt source in the testing area. Since American Tobacco’s order specified that the feeders should be wired for 220 volts, the necessary adjustments to the internal connections should have been made before the feeders left the Conveyor plant. Evidently only one of the feeders was properly wired. In late October 1959, soon after the feeders had been installed at American Tobacco, Conveyor received a complaint that one of the new feeders would not convey material properly.

The complaint came to Westerman, who was in charge of customer service for Conveyor, and he spoke by telephone to an engineer at American Tobacco. Westerman first suggested some minor adjustments to the malfunctioning feeder. While these suggestions were being followed up, he studied Conveyor’s file on the American Tobacco order and noticed the 220-volt specification. Westerman later testified: “In trying to solve the problem, the thought came to me that possibly one feeder has been changed to 220 volt and the other feeder had not.” At this point he hypothesized that if the lower than designed voltage had decreased the speed of the squirrel cage motor, the normal and desirable feed rate could be obtained by making an abnormally large adjustment to the air pressure in the springs. When the American Tobacco engineer called back, Westerman told him to lower the air pressure substantially. After this adjustment had been made (from approximately 30 p.s. i. to approximately 15 p. s. i.), the recalcitrant feeder operated at a satisfactory feed rate for two months until Westerman could travel to Richmond, verify the wiring error and have the internal wiring connections changed to 220 volts.

Early in November 1959, Westerman reported the American Tobacco incident to John M. Morris, his superior. Morris told Westerman that he must have been wrong about the miswiring for if Westerman’s theory of a miswiring were correct, the malfunctioning feeder’s motor would have burned out within a few hours of its installation and first use by American Tobacco. The other engineers at Conveyor who were consulted on the matter agreed with Morris’ analysis. Westerman, convinced of the correctness of his own thinking, prevailed upon Morris to perform an experiment with an Amplitrol feeder in Conveyor’s laboratory, in an attempt to recreate what Westerman thought had occurred with the American Tobacco feeder.

At the laboratory, Westerman and Morris found the feeder wired for 220 volts, because the laboratory’s available source was 220 volts. The feeder was started, a small bag of sand was put in the trough to act as the load, and the air pressure in the pneumatic springs was adjusted to the point where feed rate was normal. The feeder was then turned off, the internal wiring connections were changed to 440 volts and the feeder was restarted. Feed rate was negligible, but the motor did not heat up. Air pressure in the pneumatic springs was then decreased substantially, and the feeder again began to operate at normal feed rate. It was allowed to continue running in this way for a week or two; Westerman, Morris and the other engineers at Conveyor looked at it occasionally as they passed through the laboratory. At no time did the squirrel cage motor show signs of overheating.

As stated above, Westerman traveled to Richmond in early January 1960, bringing the American Tobacco incident to a close. In his deposition testimony before the Board, Westerman was asked the following questions and made the following responses:

“Q258 Now, after this laboratory experiment was concluded, did you have anything further to do with that particular project or a continuation of the project?
“A Of the project, no, sir.
“Q259 Did you ever have anything further to do with variable speed controls for feeder motors after that time?
“A No, sir.
“Q260 Now, I believe you stated on direct that you told Mr. Morris that you thought this particular setup could be patentable. Do you recall what Mr. Morris said to you in response ?
“A His response to me after we had run the test in the lab was that the research and development, of which he had control, would pursue the incident that we just witnessed in the lab.
******
“Q263 When you told Mr. Morris you thought this should be patentable, just what did you have in mind as the patentable subject matter ?
“A Varying the speed of the motor and changing the rate of feed on a work member.
“Q264 Did you have in mind any particular means of doing that ?
“A No, sir.
“Q265 At the time of this laboratory experiment, did you know of anything else with respect to speed variation other than this one incident of of [sic] running the 440 volt motor on the 220 volt line ?
“A No, sir.
“Q266 Wouldn’t it be correct to categorize the situation at American Tobacco Company as an unsatisfactory situation, having the 440 volt motor on the 220 volt line, which you subsequently corrected by rewiring the motor for 220 volts ?
******
“A Yes, sir.
“Q267 Wouldn’t it be correct to say that that situation was accidental?
“A It was accidental.
“Q268 The effects were undesirable?
“A From the customer standpoint, yes, and from our standpoint of leaving it like that, yes.”

We now turn to a consideration of the American Tobacco incident.

IY.

The Board was quite unimpressed with the American Tobacco incident as proof of conception of the invention by Westerman. It stated:

“We regard such evidence at best as only providing proof of the basis, or of the impetus, for Westerman’s idea or appreciation that the motor speed was dependent on the effect of the applied voltage and that the motor, when used with a vibratory feeder, would not burn out when energized at lower than the designed voltage. We do not regard this as establishing even complete conception of the invention in issue by Westerman.”

The district court disagreed with the Board on this point, finding in the American Tobacco incident not only an “idea or appreciation,” but conception and reduction to practice of the precise invention in issue. It appears to us that the disagreement between the Board and the district court stems from their different approaches to the incident, particularly in two aspects. First, the district court gave full credit to Westerman’s testimony that as soon as he discovered that the motor in an Amplitrol feeder would not burn up when energized at lower then the designed voltage, he realized that feed rate could be varied by electrical controls alone and that the use of compressed air, a costly second form of energy, could be obviated. Secondly, having credited this testimony completely, the district court thought that Westerman’s professed “realization” constituted conception of the invention in issue. The Board, either expressly or impliedly, took the opposite position on each matter.

As far as the physical facts of the American Tobacco incident are concerned — the miswiring of the motor, the telephoned complaint, the trip to Richmond and the like — there is no serious reason to doubt that they occurred. Contemporaneous documentation, from Conveyor’s files and elsewhere, attests to their occurrence. The same cannot be said for Westerman’s “realization” of the essential principle of the invention. As Westerman admitted in his deposition testimony, there were no documents known to exist, either in his possession or plaintiff’s, showing that between October 1, 1959, and February 15, 1960, he personally had the idea that it was either desirable or possible to vary feed rate by varying voltage to the motor. Morris testified that there was no documentation anywhere, to his knowledge, dating from before August 2, 1965, which mentioned the American Tobacco incident or tied Westerman in any way to plaintiff’s ongoing attempt to develop just such an electrical feeder control as Westerman claims he conceived in 1959-1960. Nor did any disinterested person testify to having heard Westerman, Morris or any of their colleagues discuss the American Tobacco incident or the “realization” that Westerman allegedly had. The only testimony favorable to Westerman on this point was his own and that of certain of his co-workers, similarly concerned about the outcome of the interference proceedings, who tended to^ corroborate Westerman in their deposition testimony before the Board. Nothing further was added by the testimony before the district court. With the record in this state, we cannot fault the Board for finding, as it must have done, that this self-serving oral testimony was inherently unworthy of credit. In order to have come to such a conclusion, it was not necessary for the Board to decide that Westerman and his witnesses were consciously doing otherwise than telling the truth as they remembered it. On the contrary, there is no hint of perjury in the record before us. The courts have long followed a rule, in patent cases where one party (particularly a nonpatentee) must prove what he thought or did years before testimony is taken, of putting that party to the strictest of proofs. The soundness of such a rule is clearly demonstrated in this case where testimony was not taken until more than eight years after the events in question occurred. As the Supreme Court noted in The Barbed Wire Patent Case, 143 U.S. 275, 284-285, 36 L.Ed. 154 (1892):

“The very fact, which courts as well as the public have not failed to recognize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of witnesses who imagined they had made similar discoveries long before the patentee had claimed to have invented his device, has tended to throw a certain amount of discredit upon all that class of evidence and to demand that it be subjected to the closest scrutiny.”

See also Globe-Union, Inc. v. Chicago Telephone Supply Co., 7 Cir., 103 F.2d 722, 729-730 (1939); 1 Walker, Walker on Patents § 75, at 348, 351, 353 & 356 (Deller 2d ed. 1964).

As a final observation on this point, we note that quite aside from the rules laid down in The Barbed Wire Patent Case and Morgan v. Daniels, the result we reach is compelled by our own reading and consideration of the evidence. As this court said in Globe-Union, Inc. v. Chicago Telephone Supply Co., 103 F.2d 722, 732 (1939): “In the instant case the bulk of the record stands on deposition evidence. Findings of the trial court in such situations, while worthy of great consideration, are not conclusive in this court.” See also Uihlein v. General Electric Co., 7 Cir., 47 F.2d 997, 1003 (1931).

Finally, the disagreement between the Board and the district court as to whether Westerman’s “realization,” if credited, would amount to conception of the invention in issue is most easily resolved by looking to the meaning of “conception of invention.”

“The conception of' the invention consists in the complete performance of the mental part of the' inventive act. All that remains to be accomplished in order to perfect the act or instrument belongs to the department of construction, not invention. It is, therefore, the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice that constitutes an available conception within the meaning of the patent law.” Mergenthaler v. Scudder, D.C.Cir., 11 App. D.C. 264 (1897), quoted in 1 Walker, Walker on Patents § 75, at 356 (Deller 2d ed. 1964).

Deller’s edition of Walker on Patents summarizes the law on this question even more succinctly by noting that “[a] mere idea is not conception” and that “[u]ntil the entire conception is complete and is ready to be incorporated in a practical embodiment, there is no available and complete conception of the invention within the meaning of the patent law.” Id. at 357. See Standard Cartridge Co. v. Peters Cartridge Co., 6 Cir., 77 F. 630, 645 (1896).

When an alleged inventor has only an “idea or appreciation” of what he wants to accomplish and not a conception of the means to be used in accomplishing the purpose, particularly when the means constitute an essential part of the invention, the idea or appreciation cannot stand as a complete conception of the invention within the meaning of the law. Land v. Dreyer, C. C.P.A., 155 F.2d 383, 387, 33 C.C.P.A. 1108 (1946); cf. Reed v. Cutter, 20 F.Cas. 435, 438 (No. 11,645) (C.C.D.Mass. 1841) (Story, Circuit Justice). It is obvious to us, as it must have been to the Board, that Westerman had no conception of the means to be utilized in accomplishing feed rate variation. In addition to the previously quoted excerpt from Westerman’s deposition testimony, the following passage from the same source is eloquent in establishing that Westerman did not conceive the invention in issue:

“Q167 You spoke earlier about electrical means, I am trying to quote you accurately, to control the speed of the feeder and therefore the feed rate, as being the idea that you had at the time of the laboratory demonstration.
“Can you state what it was you proposed to do electrically to effect that control ?
“A Well, I could see where the change in the motor speed would change the feed rate, and with Morris being head of Research and Development, an electrical engineer from Speed School, I left that in his hands, because I didn’t know what would be proper or the best way of controlling the speed of the motor.
“I just wouldn’t know that, and I suggested or stated to him that he is versed in that subject and he ought to be able to work it out.
“Q168 Now, by that, do you have reference to specific varying voltage means ?
“A I have reference to varying the voltage of the motor which we did to change the motor speed.
“Q169 But you did not suggest the specific means to be used for the purpose?
“A No, sir, I did not.”

V.

After having determined that Dumbaugh had priority of invention, the Board found and held as an alternative ground that the forfeiture doctrine of Mason v. Hepburn, D.C.Cir., 13 App.D.C. 86 (1898), applied to this case. The district court held to the contrary. We do not find it necessary to reach and determine this issue here.

Dumbaugh established conception and reduction dates in July 1965. Westerman did not succeed in establishing a conception date prior to his constructive conception date of October 26, 1965. It follows, then, that Dumbaugh has established priority of invention, and the award of priority by the Board of Patent Interferences to Dumbaugh was proper. Accordingly, the judgment of the district court is reversed, and this cause is remanded with directions to dismiss the amended complaint and enter judgment for the defendants.

Reversed and remanded.

      . Defendant Carman Industries, Inc. (formerly Carrier Manufacturing Company), Dumbaugh’s employer, was the initial assignee of this patent. In 1968 it sold the patent to a company whose assets have since been acquired by defendant Borg-Warner Corporation. Carman retains a license under the patent and, therefore, has an interest in the outcome of these proceedings.

      . Carrier Mfg. Co. v. Rex Chainbelt, Inc., E.D.Wis., 281 F.Supp. 717, 718 (1968). The description appears in the report of a decision concerning pretrial discovery in an infringement suit brought by present defendant Carman (under its former name) against present plaintiff. That suit was later dismissed as a part of a settlement agreement between the parties thereto under which each side granted the other a license for the invention in issue. The questions of who is the licensor under the agreement and who is the licensee were left to abide the ultimate determinaturn of priority of invention in these interference proceedings.

      . Plaintiff Rex Chainbelt Inc., Westerman’s employer, is the assignee of his patent application.

      . The interference as so declared contained twelve counts. The parties have agreed that Count 5 is representative:
      “In an electric motor drive for a vibratory free mass system, the combination of a mass mounted for a vibratory movement, means for exciting the mass to a vibratory movement with a given frequency and stroke, said means including an A.C. squirrel cage motor carrying an eccentric weight, and means for simultaneously varying both said stroke and said frequency, said last named means including means for varying voltage applied to said motor.”

      . The district court’s unreported amended opinion was filed May 5, 1971.

      . “In such suits the record in the Patent Office shall be admitted on motion of either party upon the terms and conditions as to costs, expenses, and the further cross-examination of the witnesses as the court imposes, without prejudice to the right of the parties to take further testimony.” 35 U.S.C.A. § 146.

      . The statutory basis for interference proceedings and district court review of the Patent Office determination of priority is now found in 35 U.S.C.A. §§ 135 & 146. Within the Patent Office, the Board of Patent Interferences is the only body which determines interferences, so that its decision is final. If the dissatisfied party wishes to obtain district court review of the Board’s award, he may bring his action immediately after the award is made, as was done in the instant case.

        The relevant statutes in effect in 1916 were Rev. Stats. §§ 4904, 4909-4910 & 4915 (Act of July 8, 1870, ch. 230, §§ 42, 46-47 & 52, 16 Stat. 204-205) and Act of Feb. 9, 1893, ch. 74, § 9, 27 Stat. 436. The initial determination of priority was made by the Primary Examiner. Within the Patent Office, his decision was reviewable by the Board of Examiners-in-Chief, and their decision could be appealed to the Commissioner of Patents in person. His decision could be appealed to the Court of Appeals of the District of Columbia, and if this step -was taken, the court’s decree stood as the final determination of the Patent Office. At the option of the dissatisfied party, a bill in equity to review the Patent Office decision could be brought in the district court either after the Commissioner’s ruling or after that of the D.C. Court of Appeals.

      . “An ancillary question has been defined as one which, if decided in favor of the moving party, would necessarily result in judgment against his adversary, that is, that the moving party would be adjudged to be the prior inventor of the interferference issue.” Baker, Outline of Patent Office Interference Practice 43 (12th rev. ed. 1965) (emphasis in original).

      . See Rule 231, Rules of Practice, 37 C.P.R. § 1.231 (1972), Title 35, U.S.C.A.

      . Quoting (in part) Johnson v. Riener, 302 F.2d 757, 761, 49 C.C.P.A. 1096 (1962).

      . In fact, we note that the Court of Appeals for the District of Columbia Circuit recently approved an award reversal based entirely on the record made before the Board. Cody v. Aktiebolaget Flymo, 452 F.2d 1274, 1279-1280 (1971), cert. denied, 405 U.S. 990, 92 S.Ct. 1254, 31 L.Ed.2d 456 (1972).

      . Plaintiff has introduced substantial evidence concerning the activities between 1960 and 1965 of some of its employees other than Westerman. Its purpose in so doing was to prove other reductions to practice before Dumbaugh’s in the event the Board did not think Westerman’s 1959-1960 activities established a reduction to practice. The theory under which they sought to have these activities credited to Westerman has its basis in a principle of patent law first laid down in Agawam Co. v. Jordan, 74 U.S. (7 Wall.) 583, 19 L.Ed. 177 (1869):
      “No one is entitled to a patent for that which he did not invent unless he can show a legal title to the same from the inventor or by operation of law; but where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments' arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention.” Id. at 602.

        See also Milwaukee v. Activated Sludge, Inc., 7 Cir., 69 F.2d 577, 587 (1934), cert. denied, 293 U.S. 576, 55 S.Ct. 87, 79 L.Ed. 673.
      The theory seems to be that in the same way that an employee’s work is creditable to his inventor-employer under the conditions set out above, a fellow-employee’s work is creditable to his inventor-fellow-employee, at Ifeast when both employees are under obligation to assign to their common employer the rights in any discovery made in the course of their employment. Under the view we take of this case, we do not find it necessary to decide this issue.
      It is beyond dispute that if plaintiff is to prevail, it must prove at least that Westerman eoneeived the invention in the technical sense in which that word is used in patent law. It is clear to us that unless Westerman conceived the invention, he is not the inventor, is not entitled to a patent under 35 U.S.C.A. § 102(f) and cannot be awarded priority of invention in these proceedings. Moreover, if proof that Westerman conceived the invention is to be found anywhere, it must be found in the evidence concerning his 1959-1960 activities, for his deposition testimony before the Board was straightforward and unequivocal that he had nothing further to do with the project or any continuation of it or with anything involving “variable speed controls for feeder motors” after that time. Thus, there is no need to consider the 1960-1965 activities of plaintiff’s other employees for any purpose relevant to the present proceedings.

      . At about this time, plaintiff was in the process of acquiring Carrier Conveyor Corporation, which after acquisition continued to operate as plaintiff’s Carrier Division under the same management. Sometime thereafter, Robert M. Carrier, Jr., the president of the acquired company and general manager of the Carrier Division, left plaintiff’s employ to organize Carrier Manufacturing Company. By a change of corporate name, this latter company became defendant Carman. See note 1, supra.


source: Caselaw Access Project

author: KOELSCH, Circuit Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. DAKIN AND COMPANY, Respondent.
    No. 71-2424.
    United States Court of Appeals, Ninth Circuit.
    April 2, 1973.

      Stephen Yohay (argued), N.L.R.B., Roy Hoffman, Region 20 Director, N.L. R.B., San Francisco, Cal., Peter Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, M. Davison, Deputy Ass. Gen. Counsel, Michael Barkow, Atty., N.L.R.B., Washington, D. C., for petitioner.
    Wesley J. Fastiff (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., Robert M. Lieber, Stanley H. Neyhart, Duane. B. Beeson, Brundage, Neyhart, Grodin & Beeson, San Francisco, Cal., for respondent.
    Before KOELSCH, BROWNING and CARTER, Circuit Judges.

      . The Regional Director opined that “while the employer’s argument has some appeal, the Ideal Electric holding appears to state a mechanical rule and no exceptions to its application appear to be contemplated. Accordingly, as the undersigned is bound by the Board’s decision in Ideal Electric, it is concluded that objections one through six are not meritorious.”

   KOELSCH, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order directing R. Dakin and Company to bargain with Warehouse Union Local No. 860.

The record discloses that the Union filed three representation (election) petitions within a period of three months; that it withdrew the first two, and that the third eventuated in the election which the Union won. All three petitions were identical in content. In due time Dakin filed objections with the Board; it sought to have the election set aside on grounds of Union misconduct.

Pursuant to Board Rules and Regulations, 29 C.F.R. 102.69(c), the Regional Director conducted an administrative investigation into the matter. He noted in his Report on Objections “that the investigation has raised a substantial and material issue of fact — -“but he refused to consider the objections on the merits, because all the misconduct allegedly occurred prior to the last petition — which he deemed the operative one. As support for this procedure he expressly relied upon Ideal Electric & Mfg. Co. (134 N.L.R.B. 1275 (1961)), a case in which the Board had ruled “that the date of filing of the petition . . . should be the cutoff time in considering alleged objectionable conduct in contested cases.”

Dakin filed timely exceptions to the Regional Director’s Report; it urged that the “cut off” date should be the date of the filing of the first representation petition; and in the alternative that the Ideal Electric rule, as applied in this matter, was arbitrary. The Board, however, summarily adopted the Regional Director’s findings and recommendations, approved his rationale, and certified the Union as bargaining representative for Dakin’s employees. Dakin nevertheless refused to bargain. A complaint issued. Dakin again urged that a hearing should be held upon its objections to the election. But the Board, like the Regional Director, invoked the Ideal Electric Rule and refused to entertain them. (181 N.L.R.B. 572).

Before initiating this enforcement proceeding the Board sua sponte, “wish[ing] to have the benefit of record testimony concerning allegations of conduct which transpired following October 14, 1968, the date on which the first petition was filed . . .” reopened the case. The trial examiner, to whom the matter was referred for hearing, found that all the alleged Union misconduct antedated the third election petition and that the Union’s withdrawal of the earlier petitions was not in bad faith and to “clean the slate.” Thereupon, the Board adopted the examiner’s findings and reaffirmed its decision.

The record supports the Board’s adopted findings concerning the two initial petitions. Thus the question remains, did the Board err in “mechanically” applying the Ideal Electric rule?

We conclude that the answer is yes. Ideal Electric makes clear that the rule is simply an evidentiary device calculated to render irrelevant upon a post election contest, conduct “too remote” to have interfered with the employees’ exercise of the free choice guaranteed by Sec. 7 of the Act.

In a proper case such a rule undoubtedly serves a worthwhile purpose. But if its predicate is lacking, then an indiscriminate application serves as a blanket exclusion of all evidence from consideration without regard to materiality.

We of course recognize “the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Consistent with this principle, we would pay great deference to a Board created cut-off date which is applied to some types of pre-election misconduct, even though we might believe that the lapse of time was not of sufficient length to render that conduct innocuous. But, we are not prepared to give our approval to a rule which flatly bars the consideration of all pre-petition misconduct, particularly where, as here, the Regional Director concluded, and the Board affirmed, that such alleged misconduct “raised a substantial and material issue of fact” regarding the validity of the election. The Tenth Circuit shares this view: N.L.R.B. v. Lawrence Typographical Union, 376 F.2d 643 (10th Cir. 1967).

The Order is set aside and the matter is remanded to the Board for further proceedings.

      . It would be improper for us to distinguish Ideal Electric, where the Board has itself declared the decision controlling. The Board has not always regarded cutoff dates as inflexible. In fact, Ideal Electric is a decision in which the Board modified its then current cut-off rule (as previously fixed in F. W. Woolworth Co., 109 N.L.R.B. 1446) to accommodate evidence of pre-election misconduct which would have been otherwise inadmissible. Nor has the Board always abided by the Ideal Electric rule. Thus in Weather Seal, Inc., 161 N.L.R.B. 1226 (1966) the Board, although expressly finding that “almost all” the acts which constituted employee coercion antedated “the critical period prior to the election” (citing Ideal Electric), nevertheless considered those acts in deciding to set aside the election.

      . Dakin’s contention that enforcement of the Board’s order should be denied because “the presentation of the Company’s case after almost two years of administrative intransigence was hopelessly impaired,” is not persuasive.
      At the hearing, Dakin’s counsel urged that the delay had rendered unavailable several prospective witnesses, but he also stated that those persons would be merely “corroborating witnesses . . . . ”
      Not only does Dakin fail to specify any actual prejudice, but we think it would be extremely unlikely that it could do so, for the witness to whom the Union’s coercive statements were allegedly made was present and testified and was credited by the trial examiner.


author: DONALD RUSSELL, Circuit Judge:

text:
    APPALACHIAN POWER COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. APPALACHIAN POWER COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BETHLEHEM STEEL CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, and Environmental Protection Agency, Respondent.
    Nos. 72-1733, 72-1734, and 72-1776.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5,1972.
    Decided April 11, 1973.

      H. Edward Dunkelberger, Jr., Washington, D. C. (Theodore L. Garrett, Washington, D. C., Charles C. Wise, Jr., and Thomas C. Damewood, Charleston, W. Va., on brief), for petitioners in Action Nos. 72-1733 and 72-1734.
    H. Vernon Eney and Thomas P. Perkins, III, Baltimore, Md. (Anthony M. Carey, Robert G. Smith and Venable, Baetjer & Howard, Baltimore, Md., on brief), for petitioner in Action No. 72-1776.
    James R. Moore, Atty., U. S. Dept. of Justice (Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., U. S. Dept. of Justice, on brief), for respondents in Action Nos. 72-1733, 72-1734 and 72-1776.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

These proceedings arose under the Clean Air Act Amendments of 1970, which represented a drastic revision of earlier federal air quality control legislation. In enacting the Amendments, Congress was seeking to “make possible the more' expeditious imposition (and enforcement both nationally and locally) of specific emission standards” for air pollutants by substantial revisions in the “cumbersome and time-consuming procedures” of the earlier statutes in the field. To achieve this purpose, it sought to involve both state and federal governments by establishing two methods of control, one federal and one state, each complementary of the other, and the two combining and cooperating to assure a healthy air environment throughout the nation under plans specially adapted to the unique conditions of the various states. By national action the Amendments proposed to regulate the amount of pollution in the ambient air and by state action it sought to control the amount of polluting emissions at their source.

The federal agency charged with responsibility under the Amendments was the Environmental Protection Agency. The first responsibility of the Administrator of such Agency is to prepare, from time to time, a list of all air pollutants which have an adverse effect on public health or welfare and to issue air quality criteria for these pollutants, reflecting “the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant [s] in the ambient air, in varying quantities.” He is then directed by the Amendments to promulgate national primary and secondary ambient air quality standards for each air pollutant for which air quality criteria had been issued. In the promulgation of these national standards, the Administrator, it is argued, is to be guided solely by health considerations. He is, also, to issue regulations establishing federal standards of performance for all new stationary sources. Those standards were to be achieved through the use “of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated.” The states, on the other hand, are to formulate, after reasonable notice and public hearings, “implementation plans” establishing standards for the control within their borders of sources of pollution, which standards were to be sufficiently stringent to assure that the emission volume from all such sources within those areas did not exceed the national ambient air standards. Stated somewhat differently, the Amendments provided that states, in preparing their own plans for control, could be as tough on polluters as they wished, but that no state could allow industry to exceed the federal standards on smoke and dust, carbon monoxide and other common pollutants.

The state plan was to cover existing sources and to take into account new stationary and moving sources. It is expected that states, in exercising their authority under the Amendments, would consider local factors such as “meteorological conditions, topographical context, and economic and social demands.” They are expected, also, to give consideration to control technology and economic factors. Any state implementation plan, however, has to be submitted to the Administrator for approval. The approval of the Administrator requires, inter alia, a finding by him that the plan provided for the attainment of the national primary ambient standards— based on health — within three years, and of the secondary standards' — based on welfare — within a reasonable time.

Judicial review of the action of the Administrator in approving or disapproving a state plan is authorized before the Circuit Court of Appeals for the Circuit in which the state submitting the plan is located. Application for such judicial review is to be filed within thirty days from the date of the Administrator’s approval. Unless reversed on such review, the state implementation plan remains enforceable as federal law under procedures spelt out in the Amendments and is not “subject to judicial review in [federal] civil or criminal proceedings for enforcement.”

The petitioners are all seeking judicial review of the approval by the Administrator of a state implementation plan submitted under the Amendments. In two of the proceedings, the operators of electric generating plants assail the approval of plans submitted by the States of West Virginia and Virginia. In the third proceeding, Bethlehem Steel Corporation challenges the approval of the plan of the State of Maryland. In approving the state plans involved in all three proceedings, the Administrator held no “hearings”, i. e., he granted no opportunity, after public notice, for either comment or testimony on the proposed state plans. Interested parties had, however, been given notice and hearing before the state authorities on the state plans under review. The Administrator did not file, in connection with his approval, either an environmental impact statement or a finding that one was unnecessary.

The matter presently before us does not concern the merits of the petitioners’ challenge to the Administrator’s aetion. The petitioners, by motion, seek remand of the proceedings of approval to the Administrator with instructions that the Administrator provide, after notice, an evidentiary hearing on the approval or disapproval of the state plans and that he file an environmental impact statement in connection with his approval or disapproval. These motions present the issues presently before us. They represent largely procedural questions, though some elements of substance arise. Since all motions pose similar issues, we consolidated them for oral hearing and will dispose of them together.

The initial dispute between the parties centers on the nature or character of the Administrator’s action or approval. The petitioners would catalogue that action as rulemaking, as defined in the Administrative Procedure Act, and subject to the hearing requirement fixed in that Act. The Administrator, on the other hand, asserts that “Congress did not intend that this approval process be treated as traditional rulemaking, subject to APA requirements” of a hearing. It is idle, and fruitless, to boggle over the appropriate classification of the Administrator’s action, though we cannot avoid observing that the Administrator, in his order of approval, described his action as “rule-making”. Modern precedent has discarded such classifications as criteria for determining the type of hearing to which the parties affected by administrative action are entitled. The leading text on administrative law puts it that the “best solution of the problem of classifying borderline activities is to avoid classifying them * * * [I]f the problem is to determine appropriate procedure for a particular activity, the practical procedural needs may be studied without calling the activity either rule making or something else * * *." Another commentator, who has described attempts at classifying administrative actions as formal, rulemaking or adjudicatory as “largely an unprofitable one,” suggests that, “[T]he most constructive way to eliminate many of the inequities and inadequacies which appear from time to time in administrative proceedings is to pay less attention to theoretical, conceptual, and largely artificial lines between adjudication and rule making, and to devote more attention to the task of fashioning, out of the available arsenal of procedural techniques, hybrid modes of procedure most appropriate to the issues and circumstances of particular cases or classes of cases.” Following these principles, the firm direction of recent decisions is that “Procedural requirements (dealing with the requirement of hearings in administrative proceedings) depend in part on the importance of the issues before the agency” and “The kind of procedure required must take into account the kind of questions involved.” Accordingly, if the resulting administrative action, whether regarded as rule-making or otherwise, “is individual in impact and condemnatory in purpose” or “when the issue presented is one which possesses great substantive importance, or one which is unusually complex or difficult to resolve on the basis of pleadings and argument,” a hearing preceding any final administrative action is appropriate. On the other hand, if a public hearing would appear unnecessary, either because of other available procedures or because the proceeding presents “only a question of law without any dispute on the facts” or “the ultimate decision will not be enhanced or assisted by the receipt of evidence,” a prior hearing may be dispensed with.

Naturally, the parties differ sharply in their construction of both the power and the effect of the Administrator’s approval. The petitioners which are operating electric generating plants state that the plans challenged by them, if enforced, will require the closing of their steam generating plants and the petitioner Steel Company asserts that the enforcement will compel it to incur large expenses which will result in no real diminution in either air or smoke pollution in its plant. It is the petitioners’ construction of the Amendments that not simply the state authorities but also the Administrator, in his evaluation and approval of the state plans, must consider, among other factors, the technological and economic feasibility of those provisions of the state plan which impose such onerous and “condemnatory” burdens on them. For these reasons, they urge that they should be accorded a right to be heard by the Administrator in an evidentiary proceeding. The Administrator, however, would find no need for a hearing by him on the state plans. In the first place, under his construction of his function, a hearing at his level would be unnecessary because of the prior opportunity of the parties to be heard before the state authority. The Administrator, also, justified his failure to accord a hearing on the ground that he had published, prior to promulgation, “as a notice of proposed rulemaking”, his guidelines to be issued to the state authorities in connection with the preparation of the state plans, with appropriate opportunity for comment by interested parties. 40 C.F.R., Part 51. These guidelines, however, instructed the state authorities to consider technological and economic factors. We apprehend that it is the failure to consider such factors that constitutes the basis of petitioners’ attack. The petitioners, we feel sure, have no complaint with the guidelines; their complaint is that the plan as finally approved did not give the proper weight to the technological and economic factors that the guidelines commanded. The failure of the petitioners to object to the guidelines would constitute no basis for a denial of a right of hearing by the Administrator on the subsequently developed state plans, which the petitioners may well claim violated such guidelines, and we shall not further consider such failure in connection with the Administrator’s position on the issues.

We are, however, disposed to agree with the Administrator that, if the state hearings were adequate, he was not required, prior to approving the state plans, to extend to the petitioners or other interested parties, an opportunity to be heard. An opportunity to be heard on the proposed state plans had presumably already been given all interested parties, after appropriate notice, by the respective state authorities. It is to be presumed that at such hearings all objectors had a reasonable opportunity to present, in an appropriate type of hearing, their objections to the proposed plans. To provide them a second opportunity merely to reiterate the claims made by them before the state authority, at a hearing before the Administrator, would normally be a useless exercise wasteful and time-consuming and “unnecessary”, whether the Administrator’s action be deemed “rulemaking” or otherwise. It would seem particularly unwarranted, too, in a situation, where Congress had determined that expedition was demanded by urgent considerations of health and the general welfare. That Congress intended that such a hearing before the Administrator on the state plan was to be avoided in the interest of expediting action is persuasively suggested by the statutory language. Thus, the Amendments in express words enjoin the state authorities to afford, after notice, a hearing to all interested parties, but, in providing for the subsequent approval by the Administrator, it omitted any prior hearing requirement. This omission would seem to have been purposeful, in keeping with the Congressional intent to expedite the promulgation of state enforcement plans, without encumbering the administrative procedures with two hearings on the same plan. That this was so, the Administrator found confirmed, since, under the other provisions of the Amendments, there was “no practical way that the rulemaking procedures of the Administrative Procedure Act [covering hearings preliminary to administrative actions] could be followed if the statutory time-table [for the promulgation and approval of state implementation plans under the Amendments] was to be observed.” We think it plain that Congress regarded the right to a public hearing, prior to adoption of the plan, satisfied by the hearing guaranteed before the state authority, and in the interest of expediting the promulgation of an effective state plan, dispensed with a hearing before the Administrator. In effect, Congress made a finding, which the Administrator merely confirmed in his order, that, under these circumstances, a hearing at the Administrator’s level was both “impractical” and “unnecessary.” That finding met the requirements of Section 553(b)(3)(B), 5 U.S. C.A., exempting certain rulemaking proceedings from any requirement of a hearing, if, as the petitioners argue, that Act is applicable to the Administrator’s action.

This conclusion, however, is based on the assumption that at the state hearing interested parties were afforded full opportunity to present their contentions with respect to the proposed plan. Because of the nature of the regulations and their drastic impact, such opportunity might well include the right to more than merely the opportunity to comment. See International Harvester Co. v. Ruckelshaus (D.C.Cir.1973) 478 F.2d 615, at 630-631. What is required in all instances, whatever the character of the administrative action, is “the reality of an opportunity to submit an effective presentation,” and, if in the context of the issues involved, “cross-examination on the crucial issues” is found proper, such right should be recognized and upheld. Walter Holm & Company v. Hardin (1971), 145 U.S.App.D.C. 347, 449 F.2d 1009, 1016. The record of those state hearings has not been as yet certified to this Court and it is not possible for us to determine whether those hearings provided the petitioners with the type of hearing the importance of their rights required. Should it appear, after the state hearings have been certified to this Court, that an adequate right of hearing at the state level was not afforded the petitioners, a motion to remand as requested by the petitioners might be in order.

There remains the question whether, under due process, the state hearing (assuming its adequacy) would be a valid justification for the Administrator’s failure to afford a hearing on his part prior to his approval of the state plans. This generally turns on the traditional balancing of public and private interests, though, again, some courts would resolve it in terms of whether the administrative action is adjudicative, i. e., is directed at an identifiable party. Note, Federal Administrative Law Developments — 1971, Duke L. J. (1972), supra, at 158-67; cf., Langevin v. Chenango Court, Inc. (2d Cir. 1971) 447 F.2d 296, 300. As expressed in the Amendments, Congress found that air pollution represents a present danger to human health and required urgent governmental action. For that reason, it sought to expedite, as far as it validly could, the delays that might result from unnecessary administrative proceedings in achieving effective regulation of air pollution at both national and state levels. It is fair to infer that Congress felt that, by affording interested parties an adequate opportunity for a hearing before the state authority on the state plan which was eventually to be reviewed by the Administrator, it had met the requirements of due process. Assuming that the state hearings were adequate and that the Administrator, in the course of his own evalua,tion of the state plans, reviewed those state hearings, we are inclined, on balance, to conclude that the procedures followed by the Administrator accorded with due process.

While perhaps not at issue now, it might be indicated that, even though the Administrator may have been authorized (subject to the caveats already indicated) to dispense with a hearing before him on the state plans, this in no way precludes or prejudices the right of the petitioners, under proper circumstances, to move before this Court for an opportunity to adduce additional evidence. In Citizens to Preserve Overton Park v. Volpe (1971) 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 for instance, it was held that the Secretary of Transportation was not bound to hold a public hearing prior to his administrative action in those proceedings (which action, incidentally, the Court found to be “plainly not a rulemaking function”) but, nonetheless, as an incident of judicial review of that action, the Court found that a hearing was necessary. As a matter of fact, the Amendments with which we are concerned expressly provide that, in connection with judicial review of the order of approval of a state plan by the Administrator, the reviewing court may remand the proceedings to the Administrator to take additional testimony “in such manner and upon such terms and conditions as to the court may deem [sic] proper,” upon a showing by the moving parties that “such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator.” Section 1857h-5(c), 42 U.S.C.; Getty Oil Company v. Ruckelshaus (3d Cir. 1972) 467 F.2d 349, 357.

Whether the petitioners would be entitled to an order to remand to the Administrator to receive additional testimony in connection with judicial review would depend largely on the issues to be resolved in that review. The Amendments, in authorizing judicial review, do not prescribe in specific terms the scope of that review. In Getty Oil Company v. Ruckelshaus (D.C.Del.1972) 342 F.Supp. 1006, 1015, it was assumed that the review of the action of the Administrator in approving a state plan would encompass whether the determination was “arbitrary and unreasonable because unnecessary, uneconomic and ill-suited to the accomplishment of the objectives of the regulatory program.” On appeal, the construction of the Court’s scope of review under Section 307, as stated by the District Court, was apparently accepted as authorizing judicial review on the grounds that the approval or disapproval was wholly “arbitrary and unreasonable” and that, in considering such grounds, “questions of economic hardship or lack of compelling necessity” could be considered. Getty Oil Company v. Ruckelshaus, supra, at 355, 357 of 467 F.2d. These statements of the range of judicial review find support in Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 413-416, 91 S.Ct. 814, where, in construing the scope of judicial review under a statute in which, as here, that scope was not spelt out, the Court stated that the real issue on judicial review under such circumstances was whether the agency acted within the scope of its authority and whether the decision reached was arbitrary, capricious or otherwise not in accordance with law, and, in making such determination, the court should decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision represented a clear error of judgment. This is substantially the scope of review as authorized under the Administrative Procedure Act, Section 706, 5 U.S.C. It can be accepted as the proper formula to be applied in reviewing the action of the Administrator in these actions.

But the Administrator argues that, in the exercise of judicial review of his action in approving the state plans, the Court shall look simply to his order of approval and the state plan itself and make its determination on those two documents as the sole record in the case. He goes farther and asserts that his authority in this area is largely ministerial. It is suggested that he makes no review of either the economic or technological feasibility of the plan in exercising his power to approve or disapprove the state plan. He argues that, even if the Court concludes that it is not confined in its review to the Administrator’s order and the state plan, it can go no farther in its review of his action than to consider (1) whether a hearing was had before the state authority and (2) whether the mathematical determination by the Administrator that the national standards will be achieved under the state plans is arbitrary and unreasonable. This is so, he says, because those are the sole matters considered and determined by the Administrator in his action. We take no such narrow view of either our own role in connection with the judicial review of the Administrator’s action or of the Administrator’s role in evaluating the state plan in connection with his exercise of the power to approve or disapprove.

Certainly, the Administrator’s connection with the proceedings before the state authority is considerably more intimate than he suggests and certainly may not fairly be characterized as substantially ministerial. At the outset he provided the state authorities with the guidelines to be used by them in preparing state plans and in identifying the factors to be weighed by them. And, in those guidelines, he admonished the state authorities that “nothing in this part shall be construed in -any manner * * * to encourage a State to prepare, adopt or submit an implementation plan without taking into consideration * * * impact or availability of fuels, energy, transportation and employment.” He went further in Regulations issued by him and spelt out for them “the available technology” for control of air pollutants because, as he puts it, “some of the States do not have in their State control programs enough information on what is available technology.” He made available to the state agencies throughout the formulation of their state plans technological advice. In fact, one of the primary responsibilities of the Administrator was to conduct research in the field of air pollution and make it available to the state authorities. In order to keep himself informed of the manner in which the state authorities were proceeding, he required them to give him notice of all hearings so that, if he desired, he might have observers present. Section 51.4(b)(2), 40 C.F.R. And when he came to review and evaluate the state plan, he did not restrict his consideration to the state plan itself. In his Regulations, he provided that “the State shall prepare and retain, for inspection by the Administrator on his request, a record of each [state] hearing. The record shall contain, as a minimum, a list of witnesses with the text of each presentation.” Moreover, when the plans are submitted, the Administrator does not rely on his own staff or limit his consideration to matters within the expertise of his own agency. He submits the plans, as well, we assume, as the state hearings, for review to an interagency committee, composed of representatives of the Federal Power Commission, the Office of Transportation, the Office of Management and the Budget and perhaps other federal agencies. The representatives on this federal interagency committee sit, according to the Administrator, “on a committee * * * to review the aggregate impact of all of these implementation plans” (Emphasis added). He explained further the functions of this interagency committee in his testimony before the 1972 Oversight Committee (1972):

“In the coming months we will be examining the adequacy of State implementation plans. We will be working very closely with other Federal agencies and we anticipate that the interagency review process will be an invaluable asset in determining the availability of fuels, transportation programs, and public and private sector investment.”

The review by these other agencies and by the interagency committee is not a perfunctory review of the state plans. Their review, under the procedure established by the Administrator, covers half the time allowed the Administrator himself by law to act on the plans. It is inconceivable that these agencies, acting with the Administrator, in determining “the aggregate impact” of the plans and “in determining the availability of fuels, transportation programs, and public and private sector investment,” do not consider and evaluate the technological and economic aspects of the plans under review. Nor is such evaluation inappropriate under the Amendments. After all, the Administrator’s responsibility is to determine whether the proposed plan is practical and reasonably likely to achieve the results required under the Amendments; and, if he finds it reasonably unlikely to achieve such results within the fixed time-tables, whether for technological or economic reasons, or otherwise, he should reject the plan and return it to the state authorities with instructions to consider alternative procedures that might meet the statutory requirements as established by the Administrator.

And when this Court reviews the action of the Administrator, it does not confine itself to the order of the Administrator or to the bare language of the state plan, nor will it seek to determine from the four corners of those two documents whether the action taken was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If judicial review were to be tethered to these abbreviated documents, it would “almost inevitably become [s] a meaningless gesture” and would be reduced to “a game of ‘blind man’s bluff’ ”. [sic] Courts require that administrative agencies “articulate the criteria” employed in reaching their result and are no longer content with bare administrative ipse dixits based on supposed administrative expertise. Environmental Defense Fund, Inc. v. Ruckelshaus, supra, at 586 of 439 F.2d. While an agency may have discretion to decide, “[Discretion to decide does not include a right to act perfunctorily' or arbitrarily”; and, in order for a Court to make a critical evaluation of the agency’s action and to determine whether it acted “perfunctorily or arbitrarily,” the agency must in its decision “explicate fully its course of inquiry, its analysis and its reasoning.” Ely v. Velde (4th Cir. 1971) 451 F.2d 1130, 1138-1139. And, in making its review, the Court must have, not merely that full articulation of the agency’s reasoning, but it must also have “the whole record” on which the agency acted, or, as it is expressed in Overton Park, “the full administrative record that was before the Secretary at the time he made his decision.” (401 U.S., at 420, 91 S.Ct. at 825). This is so, because, in its review, the Court is to “engage in a substantial inquiry” into the reasonableness of the agency action (Section 706, 5 U.S.C.) and as a part of that “inquiry” it “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”

(■Overton Park, supra, 401 U.S. at 415-416, 91 S.Ct. at 823-824) since “it is ‘arbitrary or capricious’ for an agency not to take into account all relevant factors in making its determination.” As applied to these proceedings, in order for the Court to make a rational determination, to make that “substantial inquiry” demanded of it in these cases calling for review of the validity of the Administrator’s action, the Court must have before it the record of expert views and opinions, the technological data and other relevant material, including the state hearings, on which the Administrator himself acted. Cf., Walter Holm & Company v. Hardin, supra, at 1015-1016 of 449 F.2d. No such record is now before the Court. The Administrator should promptly certify the “full record” that was before him at the time he approved the state plans involved in these actions.

When the records of the proceedings resulting in the approval of the state plans under review have been certified to this Court, the petitioners may, if they feel so entitled, apply to this Court for an order of remand, either because of the inadequacy of the state hearing or to take additional testimony as authorized under Section 1857h-5(c), 42 U.S.C., and, if they are able to satisfy the Court with the propriety of their motions, to secure a remand for that purpose. But the present motions are, in our judgment, premature until the Administrator has certified to this Court the full administrative record since, without that record, the Court cannot intelligently pass on the motions and determine either the adequacy of the state hearings or the right to take additional testimony under Section 1857h-5(c), 42 U.S.C.

Finally, the petitioners challenge the approvals for failure to include an environmental impact statement. We are convinced that, while NEPA applies to “all agencies of the Federal Government” and requires an impact statement for every major federal action “significantly affecting the quality of the human environment,” it is inapplicable to the action of the Administrator in seeking, through the approval of state implementation plans, to improve “the quality of the human environment.” As the Court said in Getty Oil Co. v. Ruckelshaus, supra, at 359 of 467 F.2d, “It is apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be attained by NEPA.”

Motions denied without prejudice to the right to renew.

      . Section 1857c-2 et seq. 42 U.S.C.

      . The history of federal clean air legislation is detailed in 116 Cong.Rec., 91st Congress, 2d Sess., p. S16103 (daily ed. Sept. 21, 1970); see, also, Note, Clean Air Act Amendments of 1970: A Congressional Cosmetic, 61 Geo.L.J. 153, 154-6 (1972).

      . See H.Rept. No. 91-1146, 91st Cong., 2d Sess., (1970), U.S.Code Cong. & Admin. News, p. 5360 (1970); Kennecott Copper Corp. v. Environmental Protection Agcy. (D.C.Cir. 1972), 462 F.2d 846, 849.

      . Note, Clean Air Act Amendments of 1970: A Congressional Cosmetic, 61 Geo. L.J. 153, 159 (1972):
      “The Clean Air Act Amendments of 1970 represent a compromise between the need for effective national control and the desire to mold the air pollution program around state and local needs.”

      . These proceedings are concerned with the control of air pollution from stationary sources. The Amendments also deal with moving sources but those provisions are not involved in the claims of the petitioners.

      . Section 1857c-3, 42 U.S.C.

      . Section 1857c-4, 42 U.S.C.
      At the time of the enactment of the Amendments, criteria had been issued for six pollutants but it was stated in the Congressional debates that the Administration “is currently studying 30 different pollutants to determine their potential effects on health.”
      116 Cong.Rec., 91st Cong., 2d Sess., p. S16104 (daily ed., Sept. 21, 1970).

      . The House version had required the consideration of economic feasibility and costs in setting national ambient standards. The Senate version, which was later adopted, “deleted all wording as to economic feasibility and cost in setting national ambient standards which appear in the original bill with the single exception of new source performance standards.” 61 Geo.L.J., supra, 179, n. 157. For the reasoning behind such deletion, see Kennecott Copper Corp. v. Environmental Protection Agcy., supra, at 850, n. 16 (462 F.2d).

      . Section 1857c-6, 42 U.S.C.

      . The effectiveness of this program of joint control has been seriously questioned. In 61 Geo.L.J., supra, at 161, n. 57, it is observed:
      “Derivation of emission standards from ambient standards, while determined by complex computer programming, ultimately rests on assumptions, which, if incorrect, undermine the entire control program.”

        See, also, the testimony of Sussman, Director, Bureau of Air Quality and Noise Control, Pennsylvania Department of Environmental Resources at the Hearings, Senate Subcommittee on Air and Water Pollution, Committee of Public Works, 92d Cong., 2d Sess. (1972), at 719.

      . One commentator has stated that this requirement of federal approval of state implementation plans “was intended to cramp the style of authorities that might be inclined to wink at pollution for the sake of attracting industry and expanding their local economies.” 246, The Economist (London), at 23 (January 20, 1973).

      . 61 Geo.L.J., supra, at 157.

        See, also, Baum, The Federal Program for Air Quality, 5 National Resources Lawyer 165, 169 (1972) :
      “But, as I said, when the ambient air quality standards were promulgated, there was no consideration given to economics or feasibility. It is at the implementation plan stage that a state will consider these things. In devising their control strategy, the states will determine who can do what, how much it is going to cost, if we should require sixty per cent reduction for this industry and forty per cent for this one or vice versa, and when these things will be applied.”
      Mr. Baum is Assistant General Counsel of EPA. He also prepared for the Administrator a memorandum submitted to the Senate Oversight Committee, in which this statement is made with reference to state plans:
      “It was expected that, at the (state) hearings, persons responsible for adoption of the plan would be made aware of the feasibility and impact of various possible strategies on all segments of the public. To expect States to evaluate the impact of various alternatives open to them without considering the economic and social impact of their decisions would deprive them of the flexibility and initiative Congress intended that they retain.” Hearings, Senate Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d Sess. (1972), at 312. See,

        also, p. 308 of same Hearings under heading “Economic Feasibility.”
      Senator Cooper, in explaining the provision for state plans, said:
      “And these plans must accomplish the air quality standards within 3 years. It is at this point that States and communities must make economic decisions, and decisions on the future growth of their areas and the kind of life they want, in considering alternative means of achieving clean air.” 116 Cong.Rec., 91st Cong., 2d Sess., at S16107.

      . New sources required consideration of both economic and technological factors. As Sussman, Director, Bureau of Air Quality and Noise Control, Pennsylvania Department of Environmental Resources, has observed, however, “It is obvious that these standards (of ‘the best available technology’) will be incorporated in state regulations for existing sources (especially since federal regulations will cover ‘modifications’ to existing sources).” Hearings, Senate Subcommittee on Air and Water Pollution, Committee of Public Works, 92d Cong., 2d Sess. (1972), at 719.

      . It was held in Sierra Club v. Ruckelshaus (D.C.Cir. 1972), filed November 1, 1972, cert. granted 93 S.Ct. 941, that the Administrator could not approve any plan that permitted any degradation in the air quality in the state, without regard to whether its provisions were “adequate to prevent” any pollution exceeding the national standards.

      . 42 U.S.C. 1857h-5(b) (2).
      This requirement that judicial review should follow immediately upon the Administrator’s approval or disapproval of the plan and not when enforcement was sought represented a change from the House version of the Amendments. As initially adopted by the House, the Amendments provided for a judicial review, described in the House Report thus :
      “The court may enter such judgment and orders as it deems necessary in the public interest and the equities of the case. In so doing the court must give due consideration to the practicability and to the technological and economic feasibility of complying with the provisions of the plan.” U.S.Cong. & Admin.News, 91st Cong., 2d Sess., p. 5364.

      . See Section 1857h-7, 42 U.S.C.

      . Section 551(4), 5 U.S.C. defines a rule as “an agency statement of general or particular applicability and future effect * * *." And Section 551(5), 5 U.S.C. defines rulemaking as an “agency process for formulating, amending, or repealing a rule.” Rulemaking is “typically concerned with broad policy considerations rather than review of individual conduct.” American Airlines v. Civil Aeronautics Board (1966), 123 U.S.App.D.C. 310, 359 F.2d 624, 629 cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75. It is generally contrasted with adjudication. The distinction between the two types is illustrated by classifying “any aspect of it [the administrative action] that declares generally applicable policy as ‘rulemaking’ and any aspect applying the policy to identified persons as ‘adjudication’.” Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 924 (1965).

      . See, Section 553(b)(3)(B), 5 U.S.C.

      . 1 Davis, Administrative Law Treatise, sec. 5.01, at 286.

      . Clagett, Informal Action — Adjudication —Rule Making: Some Recent Developments in Federal Administrative Law, 1971 Duke L.J. 51, 53, 85; see, also, Boyer, Alternative to Administrative Trial Type Hearings for Resolving Complex Scientific, Economic and Social Issues, 71 Mich.L.Rev. 111, 112-4 (1972); Robinson, The Making of Administrative Policy:- Another Look at Rule Making and Adjudication and Administrative Procedure Reform, 118 U.Pa.L.Rev. 485, 500 (1970).

      . Marine Space Enclosures, Inc. v. Federal Maritime Com’n. (1969) 187 U.S.App.D.C. 9, 420 F.2d 577, 586, n. 22.

      . Walter Holm & Company v. Hardin (1971), 145 U.S.App.D.C. 347, 449 F.2d 1009, 1015.

      . American Airlines, Inc., v. Civil Aeronautics Board, supra, at 631 of 359 F.2d.

      . National Air Carrier Association v. C.A.B. (1970), 141 U.S.App.D.C. 31, 436 F.2d 185, 191.

      . International Harvester Co. v. Ruckelshaus, (D.C.Cir. 1973), 478 F.2d 615.

      . Retail Store Employees U., Local 880, R.C.I.A. v. F.C.C. (1970), 141 U.S.App.D.C. 94, 436 F.2d 248, 254-255, n. 39.

      . Citizens for Allegan County, Inc. v. Federal Power Com’n. (1969), 134 U.S.App.D.C. 229, 414 F.2d 1125, 1128.

      . City of Lafayette, Louisiana v. Securities & Exch. Com’n. (1971), 147 U.S.App.D.C. 98, 454 F.2d 941, 953.

      . An illustration of such a procedure exists in these very Amendments. In Kennecott Copper Corp. v. Environmental Protection Agcy., supra, 462 F.2d 850, n. 16, the Court said:
      “ * * * The legislative history of the ‘Clean Air Amendments of 1970’ (Pub.L. 91-604) makes it dear that Congress felt public hearings on the national standards were unnecessary in light of the implementation plan hearings and would unduly delay achievement of air quality protective of the public health and welfare * * *".

        See, also, Citizens for Allegan County, Inc. v. Federal Power Com’n., supra, at 1128 of 414 F.2d in which the Court said that “the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing. The precedents establish, for example, that no evidentiary hearing is required where there is no dispute on the facts and the agency proceeding involves only a question of law.”

      . “The right to a full trial-type hearing in administrative proceedings is generally limited to the situation where adjudicatory facts — that is, facts pertaining to a particular party — are in issue.” Note, Federal Administrative Law Developments — 1971, Duke L.J., (1972) 115, 171, n. 24. However, it is the recent rule that classifications such as rulemaking (as distinguished from adjudication) do not automatically foreclose a right to an evidentiary hearing. It is the basic scope of the proceeding, rather than its classification, that determines the right.

      . Cf., Retail Store Employees U., Local 880, R.C.I.A. v. F.C.C., supra, at 254-255, n. 39 of 436 F.2d.
      “We recognize, however, that when one federal agency has rejected factual charges after an adequate investigation a sister agency may be entitled to rely upon the prior investigation in dismissing factually identical allegations without hearing * * * * ”

      . Cf., Law Motor Freight, Inc. v. C.A.B. (1st Cir. 1966) 364 F.2d 139, 144, cert. denied 387 U.S. 905, 87 S.Ct. 1683, 18 L.Ed.2d 622.
      “Section 403(a) of the Federal Aviation Act, 49 U.S.C. § 1373(a), does not require a hearing, although other sections do. With such a statutory configuration, the clear indication is that the legislative omission was significant.”
      The petitioners, however, urge that no particular inference of Congressional intent is to be drawn from the omission of any requirement of a hearing before the Administrator on the approval of a state plan, and they would find a perfectly plausible explanation for the inclusion of an express provision for such hearing in the proceedings before the state authority and the omission of such requirement in the proceedings before the Administrator. They state that it was necessary for the Amendments to provide expressly for a public hearing in connection with the state proceedings but there was no such necessity at the federal level in view of the positive command of the Administrative Procedure Act requiring a hearing in all federal administrative proceedings where there was no express provision to the contrary. It is true, as the petitioners suggest, that the Amendments include no express provision justifying the denial of a hearing in connection with the Administrator’s approval of the state plan. But we find, as did the Court in Law, a very plain Congressional intent, which we are disposed to respect.

      . An excellent statement of the reasons for this requirement of a hearing before ' administrative action, is set forth in Bonfield, Military and Foreign Affairs Function Rule-Making Under the APA, 71 Mich.L.Rev. 222-4 (1972).

      . There is an intimation in the record— actually by the Administrator — that he does not review the hearings before the state authority and the presentations made thereat. This is contradictory to a substantial extent of his justification for a denial by him of a hearing and, in our judgment, would not accord with the legislative intent or with due process. A failure on his part to consider the state hearing record would mean that interested parties had had no hearing before him. Under those circumstances, the entire justification for a denial of a hearing before the Administrator would be undermined and it might well be that a court would be compelled to remand the proceedings for a hearing before the Administrator. For the moment and in connection with these motions as they now stand, we shall assume until otherwise established, after the certification of the entire record to this Court, that the Administrator did review the full state record.

      . See, also, Walter Holm & Company v. Hardin, supra, at 1015-1016 of 449 F.2d.

      . This Section corresponds with Section 2347 (c), 28 U.S.C., applicable to proceedings before the Federal Communications Commission, the Federal Maritime Commission, the Atomic Energy Commission and orders of the Secretary of Agriculture.

      . See, also, Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584.

      . Cf., Environmental Defense Fund, Inc. v. Environmental Protection Agency (1972) 150 U.S.App.D.C. 348, 465 F.2d 528, 540-541:
      “Our own responsibility as a court is as a partner in the overall administrative process — acting with restraint, but providing supervision.”

      . See, Hearings, Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d sess. (1972), at 237.

      . Section 51.4(c), 40 C.F.R.

      . See, Hearings, Senate Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d sess. (1972), at 230 and 236.

      . See, First National Bank of Smithfield, North Carolina v. Saxon (4th Cir. 1965) 352 F.2d 267, 274 (Judge Sobeloff dissenting); Environmental Defense Fund, Inc. v. Ruckelshaus, supra, at 597-598 of 439 F.2d.

        See, also, D. C. Federation of Civic Associations v. Volpe (1971) 148 U.S.App.D.C. 207, 459 F.2d 1231, 1237:
      “Absent a record, judicial review of the Secretary’s action can be little more than a formality unless the District Court takes the disfavored step of requiring the Secretary to testify as to the basis of his decision.”

      . Cf., Note, Federal Administrative Law Developments — 1971, Duke L.J. (1972), supra, at 317, 329.

      . Hanly v. Mitchell (2d Cir. 1972) 460 F.2d 640, 648.

      . Section 4332, 42 U.S.C.