Major Coat Co. v. United States

ORDER This case comes before the court on defendant’s motion, filed December 3, 1976, for rehearing en banc pursuant to Rules 7(d) and 151. Upon consideration thereof, together with the response in opposition 197 thereto, without oral argument, by the seven active judges of the court as to the suggestion for rehearing en banc under Rule 7(d), the suggestion is denied. The case has further been so considered by the panel listed above as to the motion for rehearing under Rule 151. Plaintiff, in its response opposing defendant’s suggestion, has requested a clarification “as to whether [the court] deducted the added costs for tooling expenses and building construction * * * before it made its assessment of one-half of the earnings actually realized.” The court affirms that it did allow as a renegotiable expense and did deduct the $78,500 amount, relating to plaintiff’s special tools and new building. What is apparently confusing plaintiff is its perception that the court intended to let it retain about 50 percent of its renegotiable profits (a figure calculated, of course, by first subtracting all renegotiable expenses, including the $78,500 sum). The court, however, did not allow plaintiff to keep one-half of its earnings, but rather concluded to leave it “with fully one-half of the rate of earnings it actually realized * *.” 211 Ct.Cl.—, 543 F.2d 97 (1976). (Emphasis added.) Plaintiff, then should have been, and was, allowed to retain slightly more than one-half of its renegotiable profit rate, 16 percent out of 30.2 percent excluding GFP, and 11 percent out of 21.9 percent including GFP. IT IS THEREFORE ORDERED that defendant’s said motion for rehearing be and the same is denied.