Sandnes' Sons, Inc. v. United States

Nichols, Judge, delivered tbe opinion of tbe court: This case is a petition for a redetermination of excessive profits under Section 108 of tbe Eenegotiation Act of 1951, 50 U.S.C. App. § 1218, as amended by P.L. 92-41, 85 Stat. 97 (1971). 'Petitioner, a closely held corporation, during its fiscal year ended May 31, 1967, bad manufactured and sold wire rope assemblies and fittings, nylon cargo nets, sling cargo nets and cargo sets. Its renegotiable sales, according to tbe petition, were $3,875,535 and its renegotiable net profit was $117,969, of which tbe Eenegotiation Board determined that $125,000 was excessive. Plaintiff has not paid tbe refund and bas not filed a bond to stay the execution of tbe Board’s order. It says it is unable to do so because it is insolvent and in bankruptcy. It is said a bank bas seized all its assets. Defendant would have us default tbe plaintiff, or, in the alternative, enter a judgment in aid of execution of the Board’s order. Plaintiff says that each alternative, if adopted, would effect an unconstitutional denial of due process of law. Tbe statute cited above does not prescribe any consequence of not filing a bond except that execution of tbe Board’s order is not stayed. Tbe seminal Eenegotiation Act of 1943 (Section 701 (b) of the Revenue Act of 1943, P.L. No. 78-235, 58 Stat. 21, approved February 25, 1944) expressly provided — 110 — that the filing of a petition for redetermination (then in the Tax Court): shall not operate to stay the execution of the order of the Board * * * (Sec. 701(e)(1)). Upon making an agreement or entering an order the Board was to direct the service Secretaries to eliminate excessive profits by withholding from amounts otherwise due the contractor, or by action in the “appropriate courts of the United States” (Sec. 701(c)(2)(e)). The Tax Court was not an “appropriate court” and 'Government suits were always in the District Courts. When an order was appropriately enforceable as a counterclaim, the Court of Claims was also an “appropriate court.” Frantz Equipment Co. v. United States, 122 Ct. Cl. 622, 105 F. Supp. 490 (1952). It seems clear that “redetermination” and “collection” were wholly separate and distinct legal operations, neither one having anything to do with the other, the no-stay language barring any stay. United States v. Shanaman, 123 F. Supp. 402 (E.D. Pa. 1954). Courts sometimes balked at or complained of the ignominious role assigned them, of summarily enforcing administrative orders, on whose validity they were not allowed to pass. United States v. Miller, 111 F. Supp. 368 (E.D. Mich. 1953); Marie & Alex Manoogian Fund v. United States, 212 F.2d 369 (6th Cir. 1954) ; United States v. Hopkins, 95 F. Supp. 14 (N.D. Ohio 1950); United States v. Clark, 72 F. Supp. 393 (D. Oregon 1947). At times bonds were accepted to stay collection. Barton, Renegotiation of Government Contracts 166 (1952) but we believe this was done by administrative fiat, not judicial. Of course, the problem did not arise in the case of a contractor who eliminated excessive profits by agreement instead of by order, because his agreement could provide for extended terms of payment if needed. The 1951 Act, as first passed (Act of March 23, 1951, 65 Stat. 7, 50 U.S.C. App. § 1211 and if), in most respects paralleling that of 1943, eliminated the no-stay language and instead provided that: * * * The filing of a petition under this section shall operate to stay the execution of the order of the — 111 — Board * * * if within ten days after the filing of the petition with the Tax Court (now Court of Claims) a good and sufficient bond * * * Section 108(b). Thus the law provided a clear cut authorized way of obtaining a stay, i.e., by filing a bond. In view of the repeal of the no-stay language, there might be some ambiguity whether the language excluded obtaining a stay in any other way, or for any other reason. This question is now academic, as will appear. Characteristic features of the 1943 Act, again reverted to, are the total separation of the redetermination and collection functions, the court assigned the former having no say about collection, and the latter, none as to the scope and coverage of the Act, nor the validity of proceedings purportedly conducted thereunder, nor even, apparently, the right to grant a stay pending Tax Court determination of such matters, absent a bond. In Hermetic Seal Products Co., P.R. v. United States, 307 F. 2d 809 (1st Cir. 1962), a case involving, as here, a bankrupt contractor, the First Circuit did grant a stay pending a Tax Court determination whether the Renegotiation Act of 1951 applied to the contracts involved, which were performed in Puerto Rico. At 309 F. 2d 482 (1962), cert. denied, 371 U.S. 954 (1963), the stay was vacated on account of the failure to furnish a bond. Public Law 92-41 makes us the redetermining court, and as we are also a collecting court by way of offset, 28 U.S.C. § 1503 or counterclaim, 28 U.S.C. § 2508, the two functions are for the first time united. Still, without any clear indication that the position of the parties respecting collection is altered, no change would be implied. We are inclined to the view that upon the filing of a petition here, and non-filing of a bond, the Government’s claim for assistance of a court in “execution” of the Board’s order is a compulsory counterclaim under our Rule 40(a). Plaintiff argues that the language respecting judgment on counterclaims in 28 U.S.C. § 2508— If upon the whole case it [the court] finds that the plaintiff is indebted to the United States it shall render judgment to that effect, and such judgment shall be final and reviewable. — 112 — means that we cannot render judgment on a counterclaim while the claim in chief is undecided, and that the defendant’s motion is, in effect, a counterclaim, by whatever name called. This general language, however, enacted long before we had renegotiation jurisdiction, must yield to specific language enacted especially for renegotiation cases. There is another significant though little noticed change in P.L. 92-41. The statute now reads in part: * * * The filing of the petition under this section shall operate to stay the execution of the order of the Board * * * only if within ten days after the filing of the petition the petitioner files with the Court of Claims a good and sufficient bond * * * The emphasis is supplied, and the word only is new, having been added by the Act of August 1, 1956, ch. 821, § 11 (a), 70 Stat. 791. The committee report, S. Rep. No. 2624, at 3 U.S.C. Cong. & Adm. News 3823, 3833 (1956), calls attention to it. It is free from ambiguity and can only mean that the Government normally is entitled to our assistance in executing the order of the Board at once upon the filing of a petition without a bond. We reject, however, the motion to default the petitioner, because the statutory scheme has never made payment or the furnishing of security in any way a precondition for a redetermination of excessive profits, either expressly or by necessary implication. It has simply meant the Government remains free to collect in any way it is authorized to use, while the redetermination is pending, absent the bond. Thus we turn to the constitutional issue, and if plaintiff is right we must either hold the statute unconstitutional in part, or give it an interpretation, to avoid the constitutional questions, that otherwise we would probably reject. Plaintiff calls our attention to the undenied fact that there purports to be no due process in renegotiation cases before the “redetermination” formerly in the Tax Court, now in this. Lichter v. United States, 334 U.S. 742, 791-92 (1948); Lykes Bros. Steamship Co. v. United States, 198 Ct. Cl. 312, 459 F. 2d 1393 (1972). It also invites us to consider the growing-hostility in the Supreme Court towards schemes to collect first, litigate later, on due process grounds. Cases are: — 113 — Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), (garnishment of wages at commencement of law suit); Goldberg v. Kelly, 397 U.S. 254 (1970), (taking person of welfare without notice and hearing); Bell v. Burson, 402 U.S. 535 (1971), (lifting driver’s license summarily on happening of an auto accident); Fuentes v. Shevin, 407 U.S. 67 (1972), (replevin of chattels after installment sales). In Swarb v. Lennox, 314 F. Supp. 1091 (E.D. Pa. 1970), a three-judge district court struck down on due process grounds the Pennsylvania cognovit note system with respect to makers earning under $10,000. The affirmance, 405 U.S. 191 (1972), is on such limited grounds as not to be helpful here. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972), upholds as valid an Ohio cognovit note entered into by a corporation after arm’s-length bargaining. At p. 186 the Court says: * * * The Overmyer-Frick agreement, from the start, was not a contract of adhesion. There was no refusal on Frick’s part to deal with Overmyer unless Overmyer agreed to a cognovit. * * * In Fuentes v. Shevin, supra, the Court again limits Over-myer to a true arm’s-length bargain. Since Government contracts are contracts of adhesion, and since the Government refuses to deal with contractors who would reject the Renegotiation Article, it is clear the issue is not foreclosed by defendant’s argument that plaintiff voluntarily entered into renegotiable contracts and must accept all their implications, even unto final determination of excessive profits without any due process. There is a presumption against waiver of constitutional rights. Brookhart v. Janis, 384 U.S. 1, 4 (1966). To argue, as the dissent does, that the plaintiff voluntarily entered into contractual relations with the United States, is untenable. The record reflects that plaintiff’s renegotiable business consisted of both contracts and subcontracts, the percentage of each being unstated. So far as concerns the subcontracts at least, it is mere fiction to say plaintiff knowingly entered into any kind of contract privity with the United States. The Board’s Regulations, 32 C.F.R. § 1456.1 — 114 — and if. (January 1, 1972, Revision) reflect that a subcontractor will often be wholly unaware of the extent of its renegotiate business, even as an overall figure, still less able to tell whether any individual sale is renegotiate. The Regulations give elaborate instructions how the subcontractor is to collect data for its report to the Board. By § 1456.3, the first thing it is to do is to inquire of its customers regarding the use to which they put supplies or services furnished by the subcontractor. The warning is given that the absence of a renegotiable article or notice in a purchase order can in no way be relied on. More surprisingly, it goes on that the presence of one cannot be relied on either. Renegotiation is in fact, as this Regulation sufficiently shows, a dragnet to which the volition of the caught fish is the least of concerns. With a voluntary adhesion a matter of such immateriality to the statutory scheme, it seems irrelevant to the constitutional issue even if, in some individual instances, all the renegotiated contracts had Renegotiation Articles or notices, reflecting actual consent. Cf., Bumper v. North Carolina, 391 U.S. 543 (1968). We see no disposition on the part of courts to question collect now, litigate later techniques when employed to safeguard the revenues of governments. They were upheld in that context in Phillips v. Commissioner, 283 U.S. 589 (1931), a case mentioned and distinguished in Fuentes v. Shevin, supra, wherein the Court expressly excludes revenue collection procedures from the scope of its decision, 407 U.S. at 91. Thus an importer can obtain access to the Customs Court, which has exclusive jurisdiction of customs cases, only by paying the duties assessed. 28 U.S.C. § 1582, as amended. The Second Circuit has recently refused to interfere with this scheme by way of injunctive or declaratory relief, though it was alleged that the Treasury was threatening to assess dumping duties without employing due process in arriving at its fact findings. J. C. Penney Co. v. United States Treasury Department, 439 F. 2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971). Dumping duties under 19 U.S.C. § 160, et seg. are, it may be added, highly punitive, to the degree no one incurs them voluntarily. Compare also the Internal Revenue Code pro — 115 — visions for levy and distraint of property, IRC § 6381, and jeopardy assessments, § 6861. These powers may be exercised without any due process determination of liability, and perhaps entirely without legal warrant, and may cause a taxpayer injury, for which there is no apparent redress. Cf., David v. Cohen, 407 F. 2d 1268 (D.C. Cir. 1969). However, it does not dispose of plaintiff’s constitutional argument to say it might be treated in a still more arbitrary fashion if the contest here related to a tax. The Renegotiation Act of 1951 is not a revenue measure, at least not primarily, though it is true the Renegotiation Act of 1943 was part of the Revenue Act of that year, and it is also true that Renegotiation legislation has always been the province of the House Ways and Means and Senate Finance committees — some clue as to how Congress classifies Renegotiation. Yet the statutory declaration of policy, 50 U.S.C. App. § 1211, never says the purpose of the law is revenue. If the Commissioners of Internal Revenue or Customs could determine without any due process that a person had made too much money, in their judgment, and create a legal obligation to pay money, enforceable without further ado, we think the issue of due process would bulk larger than it does under our tax and customs legislation as it actually is. We need not analyze in detail the bearing of all these cases. They present no difficulty in reconciling the requirement that a solvent petitioner furnish a bond, if collection is to be stayed. The Supreme Court considered an appeal bond requirement for landlord and tenant litigation in Lindsey v. Normet, 405 U.S. 56 (1972), and struck it down as a denial of equal protection, but only because the double bond required of appealing tenants, but not others, was needlessly onerous. If collection could be stayed without a bond, frivolous appeals in renegotiation cases might delay for years the final elimination of excessive profits. •The plaintiff 'here says it is unable to furnish a bond, and we may take judicial notice that indigent corporations, such as plaintiff’s counsel says plaintiff 3 s, often do suffer from this disability. Therefore, plaintiff is unable to obtain a stay in the statutory manner and is exposed to the pure, un — 116 — mitigated, collect mow,, litigate, later, technique, that prevailed, at least .facially, under the 1943 Act. ... ■Several of the cases,-cited, show the Supreme Court has strongly in mind the difficulty of the indigent in obtaining due process in any meaningful way, after the immediate subject matter, of the dispute is taken from;-them. Thus the requirements. of constitutional due process may be different for indigent and solvent natural persons. (Boddie v. Connecticut, 401 U.S. 371 (1971)), and for indigent and solvent corporations, also. See, S.O.U.P., Inc. v. F.T.C., 449 F. 2d 1142 ,(D.C. Cir., 1971). (Dissent by Bazelon, C.J.); ,, That* an, indigent corporation is the. subject of an excessive profits determination may seem anomalous,,but we doubt if it. ;is umere sport case. .One clue -how it can, come, about .is given in the Congressional Report on P.L. 92-41, 1 U.S.C. Cong. & Adm. News 1131, 1133; (1971), where the Board and this; Court are’, urged to . make more use,, henceforward, of existing techniques; for-consideration ¡of costs,, expenses, and loss,es,in other, years,,, in .determining excessive profits .for. a single, fiscal, year under review.. Cf., Nichols, Equalizing profit and, Loss in Renegotiation, 45 Va. L. Rev. 41 (1959)-. The problem will be with us , and, we-cannot expect that, if we ignore it, it will go away.., . Defendant , wishes to, default The- plaintiff, and thereby deny it any dne;process hearing, on the merits. This it cannot, do. Its-motives, in alternatively seeking,a judgment in aid, of execution’of. the Board’s order can only be surmised. It certainly , seems possible, that such a, judgment might be used to destroy the capacity of an indigent corporation to litigate, further. This, in-our opinion, .would be an unconstitutional result,-, and the statute must be construed to avoid bringing,-it-about. It, is also,,.possible,;, perhaps, even likely, that the proposed, judgment would be a, mere piece of, paper, without substantial effect on further, proceedings. It,is not Suggested what the .judgment; would'add, to-the .Board’s order with,- respect to .proving the Government’s claim in the bankruptcy. Cf. In re Pacific Automation Products, Inc., 224 F. Supp. 995 (S.D. Cal., 1964). If: the. bankruptcy court really, understood: the situation,;. it, would add, nothing. We — 117 — are perfectly willing1 for defendant to have ’its judgment nevertheless, so long as it - is not ttsedi to- chill proceedings on the merits in this court. -r' f’N."; ; For átí -informed ‘and reasoned'-decision; Wemee&.fabtscwe do not have’. Therefore,’ while-’denying defendant’s? motion to default, we>,are suspending"decision oníthé^their Sparhof ther motion;' *The .■ plaintiff • ihay! < apply? to ■ OuB commissioner; wlio shall inquire;; '■‘V - ■•>>■• ¡¡-t, > ■>'• 0 a. IWhether plaintiá is finable. fo pqst'.a bond,1 in' light óf itó Own- financial’ bOfiditiom and that‘ót Other‘persons, if any, who might benefit from k faVorable 'outcome in this court. ;j >! ■ -.; ¡ b.. Whether. plaintiff’s - financial ¡condition is-due, in any part to dividends or ¡other, distributions made-from the notice of cómméñcenient of renegotiation,'to npw. c. 'Whether'the proposed judgnient'would serVé'khy'pur-posefiánd how defendant’wilbuséfit; if■ issued; *K»f <tt ‘d.- Whether: the’ proposed -judgment--would:.in any. why ■,, ,i chill the further prpsecutiop. jolf;pi,g,intiff’§, paspip; this court.- e. Whether the plaintiff intends to prosecute this case on the merits and would do so if not prevented. If plaintiff, fails to apply, the commissioner shall, go report, and the judgment will be entered.. If, plaintiff does'apply, the commissioner shall, report tó .tibíe, court his findings. andponr elusions- on the, aboye matters, separately from and prior to the merits, and, the court will then act upon the .unacted on part of defendant’s motion. ; Í , . ,. , In view of the foregoing, defendant’s motion ¡for, default j udgment. is, denied and decision. on the alternative motion is suspended pepdmg, further proceedings, in -conformity, .gfith this opinion. . * , , -¡ , j