Raydist Navigation Corp. v. United States

• Decision Date: 14 September 1956
• Docket Number: Civ. A. No. 480.
• Citation: 144 F. Supp. 503
• Court: U.S. District Court — Eastern District of Virginia
• Parties: RAYDIST NAVIGATION CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant.

144 F. Supp. 503

RAYDIST NAVIGATION CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 480.

United States District Court E. D. Virginia, Norfolk Division.

September 14, 1956.

Jones, Blechman, Woltz & Kelly, Franklin O. Blechman, Newport News, Va., for plaintiff.

L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., for defendant.

HOFFMAN, District Judge.

Raydist Navigation Corporation has instituted this action by way of declaratory judgment under the provisions of 28 U.S.C.A. § 1346(a) (2), against the United States of America, seeking a declaration of its rights by reason of certain alleged facts, the pertinent statements being as hereinafter indicated.

In December, 1951, Raydist entered into a contract with the Government which was completed during 1952 and, on or about August 24, 1953, a final payment was made thereon. During June, 1955, the same plaintiff entered into an additional contract with the Government, bearing no relation to the initial contract, which later contract is now in process of performance by plaintiff, and upon which partial payments have and are now being made pursuant to the terms thereof.

Subsequent to the final payment on contract No. 1 which, as previously noted, was made in August, 1953, the Contracting Officer of the Air Force Missile Test Center at Patrick Air Force Base, Florida, addressed a letter under date of September 23, 1954, to Hastings Instrument Corporation, Hampton, Virginia (not the same corporation as the plaintiff herein, but having the same president in the person of Charles E. Hastings), which letter reads as follows:

"Re: Contract AF 08(606)-103

"Gentlemen:

"Examination of the records of subject contract by an authorized Government agency has resulted in the disclosure, to this office, of certain alleged questionable matters. It has been reported that this examination disclosed that during the initial six-weeks period, Raydist Navigation Corporation rented certain equipment from its parent company, the Hastings Instrument Corp., for the sum of $3,000.00. Raydist billed the Government and was paid in full the amount of $5,000.00 for the initial period. The files do not show that full disclosures of the rental arrangement between the parent company and its wholly owned subsidiary was made known to the Contracting Officer during negotiation of the contract.

"During the period 15 July 1951 to 1 April 1952, Raydist continued to rent equipment from Hastings at $2,000 per month, while it was being reimbursed at the contract rate of $750.00 per week. Thus, during the life of the contract, the examination has disclosed an excessive rental of $4,821.34.

"It is further stated that the records of the Raydist Navigation Corporation did not disclose any unusual or substantial repair expenses.

"In addition to the foregoing, there has been transmitted to this office certain other information which appears to be the basis for the assertion of reasonable refunds to the Government. The matter was considered by personnel of this office and, thereafter, forwarded to higher headquarters for whatever advice deemed pertinent.

"As a result of such consideration and advice, you are hereby requested to make a voluntary return to the Government of the sum of $4,821.34.

"Sincerely "/s/ Thomas F. Larkin "THOMAS F. LARKIN "Contracting Officer"

Since the voluntary return as requested in the last paragraph of said letter was not forthcoming, the Government deducted the sum of $2,000 from one of the partial payment invoices submitted by plaintiff under the second contract. This deduction was made on or about December 19, 1955, and this action followed.

The United States has filed a motion to dismiss alleging:

(1) The Government has not consented to be sued.

(2) The declaratory judgment statute is not applicable and not maintainable.

(3) The action is merely to set aside a prior administrative determination by the Contracting Officer; it being the contention of the Government that the quoted letter herein is a determination of a dispute in accordance with the provisions of Article 16, from which no appeal was taken by the contractor within the period of 30 days as stated.

Obviously there is no merit to any of the contentions advanced by the defendant, and the motion to dismiss must be denied.

While it is undoubtedly true that the Declaratory Judgment Act, 28 U. S.C.A. §§ 2201, 2202, is not a consent of the United States to be sued, and merely grants an additional remedy in cases where jurisdiction already...