Kanehl v. United States

40 Fed. Cl. 762, 1998 U.S. Claims LEXIS 180, 1998 WL 170097
CourtUnited States Court of Federal Claims
DecidedMarch 23, 1998
DocketCong. Ref. No. 93-647X
StatusPublished
Cited by4 cases

This text of 40 Fed. Cl. 762 (Kanehl v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kanehl v. United States, 40 Fed. Cl. 762, 1998 U.S. Claims LEXIS 180, 1998 WL 170097 (uscfc 1998).

Opinion

REPORT OF THE REVIEW PANEL

YOCK, Judge.

In this congressional reference case, the review panel addresses the plaintiff’s challenge to the report of the hearing officer, which concluded that an award to the plaintiff would be a gratuity. The plaintiff’s exceptions to the hearing officer’s report have been briefed, and oral arguments were heard on January 22, 1998. The review panel has carefully considered the entire record, including the plaintiff’s exceptions, and adopts the hearing officer’s report.1 The panel advises Congress that any award to the plaintiff would constitute a gratuity.

Factual Background

Only a summary of the facts pertinent to the instant report will be set forth herein. The detailed facts are recited in the hearing officer’s report, Kanehl v. United States, 38 Fed.Cl. 89 (1997). A comprehensive background of the circumstances leading to the instant case is incorporated in Merchants National Bank v. United States (“Merchants /”), 5 Cl.Ct. 180 (1984), and Merchants National Bank v. United States (“Merchants II"), 7 Cl.Ct. 1 (1984).

[764]*764The plaintiff was the president and majority shareholder of Dri-Mix Products Corporation (“Dri-Mix”). In 1976, Dri-Mix entered into contracts with the Defense Logistics Agency (“DLA”). The contracts called for Dri-Mix to assemble prepackaged, Government-furnished items into Meal, Combat, Individuals (“MCIs”). The contracts also called for the Government to supply, at set intervals, the items to be incorporated into the MCIs.

The DLA did not deliver the items in the orderly manner that had been contemplated in the contracts. Dri-Mix could not assemble an MCI until each of 41 individual items had been received from the DLA. Some of those items were not furnished until several months after contract performance was to have begun. Dri-Mix was required to rent additional warehouse space in order to store some items while awaiting the arrival of the delinquent components.

Because Dri-Mix could not produce any MCIs until all 41 items had been received, the company did not receive any progress payments. Consequently, Dri-Mix was required to abandon its plan of using progress payments to finance later MCI production. The company turned to its primary financier, Merchants National Bank of Mobile (“Merchants” or “Bank”), for operating capital.

The increased costs of performance exceeded the credit that Merchants was willing to extend. Dri-Mix sought a Government-guaranteed V-Loan2 to obtain additional credit through Merchants. Upon recommendation by the Federal Reserve Bank (“Fed”), administrator of the V-Loan program, the DLA approved the loan guarantee. The Fed, acting as fiscal agent for the DLA, then entered into the V-Loan agreement with Merchants. Merchants advanced funds to Dri-Mix pursuant to the V-Loan agreement, enabling Dri-Mix to produce MCIs once the DLA had supplied the final component.

After most of the guaranteed amount of the loan had been disbursed to Dri-Mix, the DLA revoked the loan guarantee, leaving Merchants exposed for the entire amount of the funds advanced to Dri-Mix. After reassessing the statute governing V-Loans, the DLA decided that it never had the authority to enter into V-Loans. The DLA advised Merchants that the only way to remedy the situation was to have Congress earmark money specifically for V-Loans.

The DLA assured Merchants that it would stand by the Bank, .and the agency provided the necessary language for the 1978 Defense Appropriations Act that would give the DLA the authority to enter into V-Loans. The DLA also entreated Merchants to continue financing Dri-Mix until a new loan guarantee could be authorized, citing the armed services’ urgent need for MCIs. Merchants cooperated with the Government by continuing to finance Dri-Mix’s production of MCIs.

In fiscal year 1978, Congress appropriated $5 million for V-Loans and Merchants applied for a new V-Loan. By that time, however, Dri-Mix had delivered enough MCIs to alleviate the worldwide shortage. The DLA reneged on its assurances that it would stand by Merchants and offered a guarantee for 55 percent of the $2 million that the Bank had already extended to Dri-Mix. Under duress, the Bank accepted the terms of the guarantee, reasoning that an inadequate guarantee was better than none at all.

Dri-Mix soon reached the limit of the unguaranteed funds that Merchants was willing to extend. Out of operating capital in February 1978, it filed for Chapter 11 reorganization. Merchants attempted to negotiate with the DLA in order to continue production of MCIs, but to no avail. The Dri-Mix reorganization was converted to a liquidation bankruptcy, and, in May 1978, the Government terminated the MCI contracts for default. Dri-Mix’s trustee in bankruptcy filed claims in the Armed Services Board of Contract Appeals to have the terminations changed to terminations for the convenience of the Government and for damages. The DLA counterclaimed for damages.

Merchants, the Government, and DriMix’s trustee in bankruptcy resolved the [765]*765claims by entering into a settlement agreement, which was approved by the bankruptcy court on November 20, 1980. The pertinent provisions of that agreement provide:

1. COMPROMISES WITH DLA
A. At closing, DLA shall pay Trustee $880,000.00 and withdraw Claim No. 851 filed herein for $5,858,573.00.
B. The compromise settlement between DLA and the Trustee is, in part, arrived at by setoff by DLA against the Trustee for the- amounts of the damages to government furnished materials caused by leaking roofs while in storage in facilities leased by the Bankrupt from Teledyne Industries, Inc. and from Havatampa Corporation. Court approval and closing hereunder shall constitute, without further documentation, a transfer and set over by DLA of the said offset damages to the Trustee with the Trustee having the right to recover such damages from Teledyne Industries, Inc. and Havatampa Corporation. Promptly following closing, all documents and information establishing such damages in the possession and knowledge of DLA will be furnished by DLA to the Trustee.
C. Court approval and closing hereunder shall constitute, without further documentation, a mutual release between the Bankrupt estate and the Trustee, on one hand, and DLA on the other hand, of all legal and equitable claims and matters of every type, kind and nature whatsoever, EXCEPT as herein provided.
D. Court approval and closing hereunder shall constitute without further documentation, a mutual release, concurrence and approval, between DLA and the Bank of all claims and matters of every type, kind and nature whatsoever, EXCEPT the Bank reserves its right to relief as provided under Title 28 U.S.C. including §§ 1492 and 2509 and as set forth in Paragraph 4 herein.
E. At or promptly following closing:
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(3) The multiple proceedings before the Armed Services Board of Contract Appeals styled “Appeals of Dri-Mix Products Corp.” and the complaints of the government filed therein shall be jointly dismissed with prejudice by DLA and the Trustee at the cost of DLA.
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4. COMPROMISES WITH BANK

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Cite This Page — Counsel Stack

Bluebook (online)
40 Fed. Cl. 762, 1998 U.S. Claims LEXIS 180, 1998 WL 170097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kanehl-v-united-states-uscfc-1998.