Silverman v. United States

• Decision Date: 02 June 1982
• Docket Number: No. 517-80C.,517-80C.
• Citation: 679 F.2d 865
• Parties: Wayne E. SILVERMAN, d/b/a Allied Stenotype Reporters v. The UNITED STATES.
• Court: U.S. Claims Court

679 F.2d 865

Wayne E. SILVERMAN, d/b/a Allied Stenotype Reporters v. The UNITED STATES.

No. 517-80C.

United States Court of Claims.

June 2, 1982.

Mike Johnston, Houston, Tex., for plaintiff.^*

Cheryl S. Rome, Washington, D. C., with whom was Asst. Atty. Gen. J. Paul McGrath, Washington, D. C., for defendant; Denis E. Hynes, F.T.C., Washington, D. C., of counsel.

Before KASHIWA, BENNETT and SMITH, Judges.

OPINION

PER CURIAM:

This case comes before the court on defendant's motion, filed April 23, 1982, requesting that the court adopt as the basis for its judgment in this case the recommended decision of Senior Trial Judge Mastin G. White, filed March 18, 1982, pursuant to Rule 134(h), since plaintiff has filed no notice of intention to except and the time for so filing under Rule 141 has expired. Upon consideration thereof, since the court agrees with the recommended decision, as hereinafter set forth,^** defendant's motion is granted and the recommended decision adopted as the basis for the judgment in this case. Accordingly, plaintiff is not entitled to recover and the petition is dismissed, and judgment is entered for defendant on its counterclaim in the sum of $3,714.

OPINION OF TRIAL JUDGE

WHITE, Senior Trial Judge.

In this rather unusual case, the plaintiff, an experienced court reporter who maintains his office in Fort Worth, Texas, seeks compensation in the amount of $2,482.88 from the United States for reporting services in connection with proceedings before the Federal Trade Commission ("FTC").

The defendant has counterclaimed in the alternative for $7,608.19 or at least for $1,484.62,¹ representing payments previously made to the plaintiff.

The Facts

In August 1976, the FTC entered into a contract with Acme-Stentran Computer Reporting Company ("Stentran"), of Vienna, Virginia, under which Stentran was to furnish stenographic reporting services for the FTC throughout the country during a period of time which, as extended, continued until May 26, 1978.

In 1977, Stentran entered into an oral agreement with the plaintiff, pursuant to which the plaintiff was to act as a subcontractor under the contract mentioned in the preceding paragraph and, in that capacity, was to perform stenographic reporting services in connection with certain FTC hearings, including a number of hearings which were held during 1978 in Dallas, Texas, and which are involved in this case.

Under the procedure agreed upon between Stentran and the plaintiff, the plaintiff was to transcribe the testimony taken at the FTC hearings and forward the transcripts to Stentran, the prime contractor, together with invoices covering the plaintiff's charges based on agreed-upon prices. Stentran was then supposed to pay the plaintiff for his services. The transcripts prepared by the plaintiff were to be furnished by Stentran to the FTC in accordance with the prime contract between Stentran and the FTC; and Stentran was to receive payment from the FTC under the prime contract.

The FTC did not, at any time, have a written contract with the plaintiff.

Stentran got into financial difficulties; and as of the beginning of May 1978, Stentran was behind in its payments to the plaintiff. At that time, Stentran owed the plaintiff for the reporting services involved in some 33 days of FTC hearings, where the transcripts had already been prepared by the plaintiff and forwarded to Stentran, and then had been furnished by Stentran to the FTC. Also, the plaintiff had prepared, and was holding, two additional transcripts of hearings held in different proceedings on the same day. The total amount which Stentran owed the plaintiff, including the charges for the two transcripts which the plaintiff was then holding, was $10,091.07.

The plaintiff was aware that Stentran was having financial difficulties, and the plaintiff was apprehensive that Stentran might become bankrupt, owing him money. On or about May 2, 1978, the plaintiff called an official of Stentran in Vienna, Virginia, on the long-distance telephone, and asked when the plaintiff could expect to receive the money that was due him from Stentran. The plaintiff did not receive a satisfactory response from the Stentran official. Following this conversation, the plaintiff decided that he would send the two FTC transcripts, which he was then holding, to Stentran, c.o.d.

On May 9, 1978, the plaintiff transmitted to Stentran in Vienna, Virginia, via Airborne Freight Corporation, a c.o.d. shipment which contained the two transcripts that the plaintiff had been holding, and which demanded payment of the entire amount of $10,091.07 then owing by Stentran to the plaintiff.

The c.o.d. shipment contained a covering letter from the plaintiff to Stentran, dated May 9, 1978, which stated in part as follows:

I don't like to do this, but I told you it would have to be done. We are putting you on a c.o.d. basis and are sending it for $10,091.07, which includes the total of the enclosed invoices which we have not been paid for. * * *

The plaintiff mailed to the Secretary of the FTC a copy of his May 9, 1978, letter to Stentran. The duties of the Secretary of the FTC included (among other things) supervision over the 1976 contract between the FTC and Stentran.

On May 12, 1978, Airborne Freight Corporation informed the plaintiff via telephone that Stentran had refused to accept the c.o.d. shipment. The plaintiff directed the carrier to retain the shipment in Washington, D. C., pending further instructions.

Promptly after his conversation with Airborne Freight Corporation, the plaintiff on May 12, 1978, wrote a letter to the Secretary of the FTC, informing the latter that Stentran had refused to accept the c.o.d. shipment, and stating that he had informed the carrier to hold the c.o.d. shipment in Washington until further notice. The plaintiff's letter contained the specific request "that you make no payments to them Stentran for any bills you might owe them until we collect our money so that we can forward these transcripts in."

Approximately a month before May 12, 1978, the FTC had paid Stentran under the prime contract for the reporting services involved in some 14 days of hearings held during January, February, and March 1978 and reported by the plaintiff. The plaintiff had forwarded the transcripts of these hearings to Stentran, and Stentran, in turn, had furnished them to the FTC. The plaintiff's charges to Stentran for these services amounted to $4,364, but Stentran had not paid any of this amount.

Then, on May 12, 1978 (and obviously before the FTC in Washington, D. C., received the plaintiff's letter of that date from Fort Worth, Texas), the FTC paid Stentran under the prime contract for the reporting services involved in 9 additional days of hearings held during February, March, and April 1978 and reported by the plaintiff. The plaintiff had forwarded the transcripts to Stentran, and Stentran had furnished them to the FTC. The plaintiff's charges to Stentran for these services totalled approximately $1,834, but Stentran had not paid any of this amount.

Thus, before the FTC received the plaintiff's letter of May 12, 1978, asking the FTC not to make any further payments to Stentran, the FTC had already paid Stentran for the reporting services involved in 23 days of hearings reported by the plaintiff. The transcripts of these hearings had been forwarded by the plaintiff to Stentran, and the latter had furnished the transcripts to the FTC. The plaintiff's charges to Stentran for these services totalled $6,198, but none of this amount was paid by Stentran.

On May 22, 1978, a senior official in the Office of the Secretary of the FTC called the plaintiff on the long-distance telephone relative to the c.o.d. shipment which the plaintiff had sent to Stentran. The official, who was aware of the amount demanded in the c.o.d. shipment and that it contained a couple of transcripts, stated to the plaintiff that he was calling to inquire whether the plaintiff would release the c.o.d. shipment to the FTC. The plaintiff's initial response was that he could not release the c.o.d. shipment until he received the money that was owing to him, as he was apprehensive that Stentran would go bankrupt and that he did not wish to become involved in a proceeding of that sort. The FTC official told the plaintiff that he was the man with whom the plaintiff should deal if the plaintiff wanted to get paid, as he had the authority to approve vouchers for payment; that the FTC wanted the transcripts; and that if the c.o.d. shipment was released, he would see to it that the plaintiff received payment, even if Stentran went bankrupt.

It has previously been indicated that, before the senior FTC official called the plaintiff on May 22, 1978, the FTC had already paid Stentran under the prime contract for the reporting services involved in 23 days of hearings reported by the plaintiff. The transcripts had been prepared by the plaintiff and forwarded to Stentran, and Stentran had furnished them to the FTC. The plaintiff's charges to Stentran for these services totalled $6,198, but none of this amount had been paid by Stentran.

On the basis of the May 22, 1978, telephone call from the FTC official, the plaintiff got in touch with Airborne Freight Corporation via telephone and told the carrier to release the c.o.d. shipment to the FTC without collecting for it, and that he (the plaintiff) would pay the carrier for the transportation charges. Later in the same day, the plaintiff confirmed this directive in writing. Pursuant to the plaintiff's authorization, Airborne Freight Corporation released the c.o.d. shipment to the FTC on or about May 26, 1978.

On June 23, 1978 (or a month after the conversation between the senior FTC official and the plaintiff), the FTC paid Stentran under the prime contract for the reporting services involved in 8 days of hearings held during April 1978 and reported by the plaintiff. The plaintiff had prepared...