The opinion of the court was delivered by: LUONGO
Plaintiff, Eli Raitport, instituted this suit for damages and injunctive relief against the United States and one of its agencies, the National Bureau of Standards, alleging that one of the Bureau's departments, the Experimental Technology Incentives Program (ETIP), has been (a) operating illegally, (b) defrauding Congress and the public, (c) engaging in an unlawful duplication of services, (d) mismanaging government funds, (e) conspiring on behalf of private companies to aid monopolistic business, and (f) conspiring to prevent funds from being allocated to small companies in actual or potential competition with monopolistic industry. Raitport's standing to litigate these claims stemmed from ETIP's rejection of his proposal to create a federally sponsored bank to provide loans for technologically oriented small businesses. Jurisdiction is based upon 28 U.S.C. § 1331.
The defendants have moved for summary judgment pursuant to F.R.C.P. 56, contending that there is no genuine issue of fact for trial and that the record clearly discloses that there is no ground for overturning the agency's (ETIP's) action.
In First Penna. Banking and Trust Company v. United States Life Insurance Company, City of New York, 421 F.2d 959 (3d Cir. 1969), reh. denied, December 10, 1969, the test applicable to motions for summary judgment was stated, at page 962:
"Summary judgment may not be granted under the federal rule if there be an issue presented as to existence of any material fact; and all doubts as to existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. Sarnoff v. Ciaglia, 165 F.2d 167 (3d Cir. 1947). Also, in ruling on a motion for summary judgment, the movant not only has the burden of demonstrating clearly the absence of any genuine issue of material fact, but the court shall not draw factual inferences in favor of the moving party, and should not resolve a genuine issue of credibility. Moore's Federal Practice P 56.7(27) at 2215-2216." (Emphasis added)
See also Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114 (3d Cir. 1966); Hopewell Township Citizens I-95 Committee v. Volpe, 482 F.2d 376 (3d Cir. 1973); and Burger King Corporation v. Continental Insurance Co., 359 F. Supp. 184 (W.D. Pa. 1973).
The record in this action includes the pleadings, affidavits, a partial transcript of the hearing on Raitport's motion for preliminary injunction, and a certified copy of the administrative record. This entire record may properly be considered in determining whether to grant a motion for summary judgment. See 6 Moore's Federal Practice P 56.11(1.-8) p. 2147-8 (1972); Langston v. Johnson, 156 U.S. App. D.C. 5, 478 F.2d 915, 918 (1973); Taylor v. Latimer, 47 F. Supp. 236, 237 (W.D. Mo. 1942); National Broadcasting Co. v. United States, 47 F. Supp. 940, 946-7 (S.D. N.Y. 1942), aff'd 319 U.S. 190, 87 L. Ed. 1344, 63 S. Ct. 997 (1943); Shulins v. New England Insurance Co., 360 F.2d 781, 785 (2d Cir. 1966); Fletcher v. Bryan, 175 F.2d 716, 717 (4th Cir. 1949).
From the record these facts appear:
ETIP was formed by the National Bureau of Standards
in 1972 to fulfill a need, which President Nixon enunciated in his State of the Union Message of that year, to discover more "about the process of stimulating and applying research and development."
ETIP's goal was described in the budgetary message for fiscal year 1973 as "initiating a series of experiments to find better ways to encourage private investment in R & D (research and development), including investment by small entrepreneurial R & D firms, which have made significant contributions to the generation and exploitation of innovative ideas . . . ."
Raitport proposed to ETIP a plan to form a United States Investment Banking Corporation (USIBC) which would finance small entrepreneurs possessing ideas to produce, at lower cost, products used in high volume in this country. In Raitport's view, this aid to small entrepreneurs would spur R & D and fulfill the Presidential directives for this new agency. The administrative record reflects a series of communications between ETIP and Raitport relating to his plan. (Unless otherwise specified, the dates set forth are those appearing on letters in the administrative record.)
1. July 11, 1972, Raitport suggested to Secretary of Commerce Peterson the formation of USIBC. (Tab B-Adm. Record)
2. July 26, 1972, Hudson B. Drake, Deputy Assistant Secretary and Director of the Bureau of Domestic Commerce of the Commerce Department, informed Raitport that his letter was being transmitted to Dr. Harold Glaser, Acting Director of ETIP. (Tab C-Adm.Record)
3. August 25, 1972, Dr. Glaser advised Raitport: "This (USIBC) is an intriguing concept although I do not know, at present, if it would be possible to fit into an Experimental Technology Incentives Program (ETIP) experiment format." (Tab F-Adm. Record)
4. August 31, 1972, Raitport visited with John Evans of ETIP and described his USIBC proposal. (Tab G-Adm. Record)
5. May 16, 1973, ETIP forwarded to Raitport a press bulletin and brochure on the evolving ETIP program. (Tab A-Adm. Record, Bulletin and Brochure)
6. June 4, 1973, Raitport sent to F. Karl Willenbrock, the new Director of ETIP, a copy of a modified USIBC proposal calling for five million dollars in initial funding and a guarantee from the government of 50 million ...