United States v. Bass

• Decision Date: 21 July 1954
• Docket Number: No. 14947,14948.,14947
• Citation: 215 F.2d 9
• Parties: UNITED STATES v. BASS. BASS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

215 F.2d 9 (1954)

UNITED STATES v. BASS.

BASS v. UNITED STATES.

Nos. 14947, 14948.

United States Court of Appeals Eighth Circuit.

July 21, 1954.

COPYRIGHT MATERIAL OMITTED

Donald Gunn, St. Louis, Mo., for Harry C. Bass, Jr., d/b/a Western Beef Co.

Alan S. Rosenthal Atty., Department of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Harry Richards, U. S. Atty., W. Francis Murrell, Asst. U. S. Atty., St. Louis, Mo., and Samuel D. Slade, Atty., Department of Justice, Washington, D. C., were with him on the brief), for the United States.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This is an action whereby plaintiff seeks to recapture a meat subsidy payment in the amount of $32,773.14, together with 4% interest from the date of disbursement. From a summary judgment entered below in favor of plaintiff for the principal sum, both parties appeal, defendant on the ground that plaintiff is not entitled to judgment as a matter of law, and plaintiff on the ground that the trial court erred in its allowance of interest.

Defendant is a livestock slaughterer who, like others engaged in that industry, was the recipient of substantial federal meat subsidies during and immediately after the critical years of World War II. In creating the subsidy program it was the intent of Congress that required levels of production be maintained in private industries, including those of an economically and strategically critical nature. This subsidy program found expression in the Emergency Price Control Act of 1942, 56 Stat. 26, § 2(e), 50 U.S.C.A.Appendix, § 902(e), which provided, inter alia, "Whenever the Administrator determines that the maximum necessary production of any commodity is not being obtained or may not be obtained during the ensuing year, he may, on behalf of the United States, * * * make subsidy payments to domestic producers of such commodity in such amounts and in such manner and upon such terms and conditions as he determines to be necessary to obtain the maximum necessary production thereof: * * *." It was pursuant to this Act, as amended, that defendant received the subsidy here in question.

The record discloses that on June 4, 1946, defendant filed claims for a meat subsidy totaling $38,860.50. The claims covered defendant's operations from May 6, 1946, to June 1, 1946, and, pursuant to the expeditious policies of the Reconstruction Finance Corporation (hereinafter referred to as RFC), received tentative approval on June 5, 1946. Two days later, on June 7, 1946, defendant received payment in the amount of $38,626.40. It should be noted that the rapidity of this tentative approval and payment stemmed from the practical realization, implemented into policy, that delay in receipt by a given claimant might seriously curtail continued business operations. Yet the right was reserved, following necessarily more time-consuming administrative examination, later to declare a given payment invalid upon certification to the RFC by the Department of Agriculture that a subsidy claimant had exceeded his authorized slaughtering quota by more than 3%. Dir. 41, Amend. 4, O.E.S., April 16, 1946 (11 F.R. 4340); Revised Reg. No. 3, Sec. 7003.10(a), January 19, 1945 (10 F.R. 4243); Amend. 17 to Sec. 7003.10(a), April 26, 1946. It was pursuant to these regulations that on June 19, 1946, the Department of Agriculture certified to the RFC that the defendant herein had exceeded his authorized slaughtering quota by more than 3%. Consequently, on July 11, 1946, the RFC notified defendant that his May claim for a subsidy had been invalidated and that a claim receivable had been set up in favor of the United States for the amount already tentatively paid. Said notice of invalidation also provided "interest @ 4% from the date of Disbursement until paid."

Defendant lent a deaf and unresponsive ear to repeated government demands for repayment of the subsidy which, after application of several set-offs never in contest, had been set in January, 1947, at the figure of $32,773.14. On December 13, 1950, defendant filed a formal protest to the RFC's invalidation of the subsidy, said protest being denied by the RFC on June 25, 1951. Thereupon, on July 26, 1951, defendant sought review of said administrative action before the Emergency Court of Appeals. That court dismissed defendant's complaint for want of jurisdiction, on the ground that it was not filed within thirty days of the denial of protest, as required under Amodio v. Reconstruction Finance Corp., Em.App., 191 F.2d 862. From that judicial determination defendant did not seek further review.

While defendant's claim was still pending before the Emergency Court of Appeals, the United States brought the instant action on its account receivable in the District Court below and, upon dismissal of defendant's action by the Emergency Court of Appeals, the District Judge entered, upon motion, the summary judgment from which defendant appeals. Though the District Judge awarded the United States the principal sum prayed for of $32,773.14, 4% interest was awarded only from June 25, 1951, the date the RFC denied defendant's formal protest. It is from this single facet of the judgment that plaintiff appeals, insisting that interest should run from the date of the original subsidy disbursement as provided for in the RFC's original invalidation order of July 11, 1946.

Turning now to the legal merit of the parties' respective contentions, defendant vigorously argues that we are not here confronted with the validity or invalidity of a final order duly issued by the RFC, which, defendant concedes, under Section 204(d) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A. Appendix, § 924(d), would have been beyond the jurisdiction of this court to determine. Riverview Packing Co. v. Reconstruction Finance Corp., 3 Cir., 207 F.2d 361, 415. Defendant insists that we are faced not with the question of the validity of an RFC order but, rather, with a distinguishable inquiry, viz., has there been an "order" at all, regardless of validity. Further, it is argued that plaintiff in its complaint referred to attached Exhibit B as being the RFC order declaring the subsidy invalid when, in fact, such exhibit was merely the Department of Agriculture certification that defendant exceeded his lawful slaughtering quota. Actually it was Exhibit C-4, attached to the complaint, which plaintiff relies upon as being the order and which, through inadvertence and clerical error, was mistakenly designated in the complaint as Exhibit B. Defendant insists that the trial court below went beyond the issues presented in finding Exhibit C-4 to be the order. Though in his answer defendant admitted that the RFC "issued an order as set out in Exhibit B"¹, he argues that such an admission cannot make Exhibit B an order when it was not, since "Courts are not yet bound to find and hold that black is white merely because the parties want it to be or are careless enough to have admitted it to be."

Defendant is correct in assuming that merely because he admitted that Exhibit B was an "order" of the RFC that would not make it such an order. But by the same token the designation in plaintiff's complaint of Exhibit B as the order of the RFC did not make Exhibit B such an order. The complaint set out the fact that the RFC had made an order invalidating defendant's May subsidy and referred to Exhibit B as being that order. The complaint then stated the total amount of the invalidated claim and immediately following the complaint stated:

"(See Exhibit `C-4\' attached hereto and made a part hereof.)"

Exhibit C-4 was attached to the complaint and showed for itself what it was. Its existence or issuance by the RFC was not specifically denied in the answer or by affidavit upon motion for summary judgment. Exhibits B and C-4 both were before the trial court. That court recognized and treated them for what they were — Exhibit B as the certification of the Department of Agriculture, Exhibit C-4 as the order of the RFC invalidating defendant's subsidy. The trial court not only had the right to do so, it was its duty to do so. Reconstruction Finance Corp. v. Service Pipe Line Co., 10 Cir., 198 F.2d 775; Simmons v. Peavy-Welsh Lbr. Co., 5 Cir., 113 F.2d 812; Dayton Bread Co. v. Montana Flour Mills Co., 6 Cir., 126 F.2d 257.

Defendant says that Exhibit C-4 was not a final order of the RFC. It was the final action of the RFC invalidating defendant's May subsidy. True there was an adjustment of the amount by giving defendant credit for money due him and thereby reducing the total which the RFC ordered him to repay, but that in nowise disturbed the finality of the invalidation of the entire May subsidy by Exhibit C-4. To constitute an order it was not necessary that the instrument follow any particular technical form. As stated by the Emergency Court of Appeals in Riverview Packing Co. v. Reconstruction Finance Corp., Em.App., 207 F.2d 415, 418:

"We have held that Revised Livestock Slaughter Payments Regulation No. 3 and its predecessor Livestock Slaughter Payments Regulation No. 3 are regulations issued under section 2(e) of the Act and that a determination by the Reconstruction Finance Corporation invalidating under the regulation a claim for a subsidy made thereunder is itself an order under section 2(e) of the Emergency Price Control Act which is subject to the protest and review procedure before the Emergency Court of Appeals of sections 203 (a) and 204(a) of the Act. We have not thought that such a determination need be in any particular form and have regarded action by the respondent as a reviewable order when incorporated in a letter or memorandum. In order to present a reviewable question to this court, however, there must be a definite order in some form which has finally invalidated the subsidy claims in question."

In that case the invalidating order held valid was in a letter in...