Kilgore Corp.

26 Cont. Cas. Fed. 83,368, 220 Ct. Cl. 679, 1979 U.S. Ct. Cl. LEXIS 158, 1979 WL 10189

• Court: United States Court of Claims
• Decided: May 25, 1979
• Docket: Nos. 219-72, 220-72, 410-73
• Status: Published

Opinion

On May 25, 1979 the court entered the following order:

Robert B. Yorty, attorney of record for plaintiff. Gordon W. Hatheway, Jr., and Pierson, Ball & Dowd, of counsel. David Eisenberg, with whom was Assistant Attorney General Barbara Allen Babcock, for defendant. Before Friedman, Chief Judge, Davis and Smith, Judges.

The plaintiff seeks in this court a redetermination of excessive profits determined by the Renegotiation Board. Under the pertinent statute and the Rules of this court, a person seeking such redetermination may, in lieu of paying the excessive profits, file a bond with this court. In this case the plaintiff paid the excessive profits, totalling $979,031.45, in 1972 and 1973, which it describes as "provisional payment” and then filed this suit for a redetermination. The case was tried in 1975. The trial judge rendered his recommended decision in September 1978, and the defendant has excepted to that decision.

Plaintiff now seeks to substitute a bond for the $979,031.45 it previously paid, and an order directing refund of that amount. The defendant opposes the motion.

We recently granted the same relief in National Presto Industries, Inc. v. United States, order of February 16, 1979, rehearing and rehearing en banc denied April 6, 1979, further order dated May 11, 1979, 219 Ct.Cl. 626. We there considered and rejected all of the arguments the defendant makes in opposing this motion. In our order of May 11, 1979, 219 at 628, we stayed our original order of February 16, 1979, directing a refund of the amounts the plaintiffs in that case previously had paid, to June 4, 1979, to give the Solicitor General the opportunity to decide whether to file a petition or a writ of certiorari. Our May 11 order further provided that if the Solicitor General does not decide by that date to file a petition, defendant should have an additional 20 days to make the refund. For the reasons given in our order of May 11, 1979, a similar disposition of this motion is appropriate.

Accordingly, it is ordered that the plaintiffs motion to substitute a bond as security is granted. Upon the filing with this court by the plaintiff of a proper bond in the amount of $979,031.45, and if by June 11, 1979 the Solicitor General has not determined to file a petition or a writ of certiorari in this case, then by July 2, 1979, the defendant shall refund to the plaintiff the $979,031.45 it previously paid.