LaBelle Iron Works v. United States, 256 U. S. 377. Lash's Products Co. v. United States, 64 C. Cls. 252; 278 Levering & Garrigues Co. v. United States, (D-420), 71 C. Cls. Page 159 127 93, 275 253 Levering & Garrigues Co. v. United States, (D-418), 73 C. Cls. 566. 551 Levering & Garrigues Co.. v. United States, (D-417), 73 C. Cls. 508.. 551 Lewis v. Reynolds, 284 U. S. 28. 590 Lewman et al. v. United States, 41 C. Cls. 470 54 Lone Wolf v. Hitchcock, 187 U. S. 553.. 262 McClure v. United States, 116 U. S. 145. 346 McCoach v. Minehill Railway Co., 228 U. S. 295– 501 Markley v. United States, 59 C. Cls. 924- 127 Marshall v. United States, 88 C. Cls. 393; 308 U. S. 597 239 Means v. United States, 69 C. Cls. 539; 282 U. S. 849_. 176 Megan v. Updike Grain Corp., 94 Fed. (2d) 551 54 Midvale Paper Board Co. v. United States, 31 Fed. Supp. 851 159 Moore Ice Cream Co. v. Rose, 289 U. S. 373. 358 Moses, Executor v. United States, 28 Fed. Supp. 817- 441 159 201 Newport Industries, Inc., v. Commissioner, 40 B. T. A. 977- Oswald Joeger Baking Co. v. Commissioner, 108 Fed. (2d) 375_ Plack et al v. United States, 66 C. Cls. 641-- 551 Prairie State National Bank v. United States, 27 C. Cls. 185; 164 U. S. 227.. 144 Reno, The, 134 Fed. 555 381 Ritter v. United States, 28 Fed. (2d) 265. 217 Rosoff Tunnel Corporation v. Higgins, 28 Fed. Supp. 880 159 Ruprecht v. Commissioner, 16 B. T. A. 919 358 Rust Engineering Co. v. United States, 86 C. Cls. 461. 97, 551, 571 Sac and Fox Indians v. United States, 45 C. Cls. 287; 220 U. S. 481... 262 Sage v. United States, 250 U. S. 33 358 Schechter v. United States, 205 U. S. 495_ 32, 401 Semmes Motor Co. v. United States, 67 C. Cls. 631 217 Shady Side, The, 21 Fed. Cases, 1137 381 Shoshone Tribe of Indians v. United States, 82 C. Cls. 23; 299 U. S. 476; 304 U. S. 111; 85 C. Cls. 331 262 Sioux Tribe of Indians v. United States, (No. C-531-6), 89 C. Standard Oil Co. (Ind.) v. United States, 78 C. Cls. 714; 293 Standard Steel Car Co. v. United States, 67 C. Cls. 445, 475-- 472 306, 459 Stapleton Construction Co. v. United States, 92 C. Cls 551. 571 123 159, 167 Sun Shipbuilding Co. v. United States, 76 C. Cls. 154- Thomas Earle & Sons, Inc. v. United States, 90 C. Cls. 308.. Tomlinson v. United States, 66 C. Cls. 697_ Twin City Properties, Inc. v. United States, 90 C. Cls. 119.. Page 472 358 186, 358 590 137 253 97 186 132 186 501 Umbria, The, 166 U. S. 404....... 381 Union Land & Timber Co. v. United States, 65 C. Cls. 129... 483 337.. 358 United States v. Garbish, 222 U. S. 257....... 54 United States v. Hagan & Cushing Co., 115 Fed. (2d) 849_. Updike, Trustee v. United States, 69 C. Cls. 394.. 83 Von Baumbach v. Sargent Land Co., 242 U. S. 503 483 Wharton Green & Co., Inc. v. United States, 86 C. Cls. 100; 303 551 Whitbeck, Receiver, v. United States, 77 C. Cls. 309; 290 U. S. 671.. 32 Wickham & Burton Coal Co. v. Minnesota Coal Co., 7 Fed. (2d) Wildcat, United States v., 244 U. S. 111. 54 346 262 PROCEDURE WITH REGARD TO SUITS UNDER THE ACT OF JUNE 25, 1938 [Public-No. 741-75th Congress] AN ACT TO CONFER JURISDICTION ON THE COURT OF CLAIMS TO HEAR, DETERMINE, AND ENTER JUDGMENT UPON THE CLAIMS OF GOVERNMENT CONTRACTORS WHOSE COSTS OF PERFORMANCE WERE INCREASED AS A RESULT OF ENACTMENT OF THE NATIONAL INDUSTRIAL RECOVERY ACT, JUNE 16, 1933 Be it enacted by the Senate and House of Representative 1 of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and enter judgments against the United States upon the claims of contractors, including completing sureties and all subcontractors and materialmen performing work or furnishing material to the contractor or another subcontractor, whose contracts were entered into on or before August 10, 1933, for increased costs incurred as a result of the enactment of the National Industrial Recovery Act: Provided, That (except as to claims for increased costs incurred between June 16, 1933, and August 10, 1933) this section shall apply only to such contractors, including completing sureties and all subcontractors and materialmen, whose claims were presented within the limitation period defined in section 4 of the Act of June 16, 1934 (41 U. S. C., secs. 28–33). SEC. 2. Suits upon such claims may be instituted at any time within six months after the enactment of this Act or, at the option of the claimant, within six months after the completion of the contract. Proceedings for the determination of such claims, and appeals from and payment of any judgment thereon, shall be in the same manner as in the cases of claims over which such court has jurisdiction, as provided by law. SEC. 3. Judgments or decrees, if any, under this Act, shall be allowed upon a fair and equitable basis, and notwithstanding the bars or defenses of any alleged settlement or adjustment heretofore made, res adjudicata, laches, or any provisions of Public Act Numbered 369, as enacted on June 16, 1934. SEC. 4. This Act shall not be interpreted as raising any presumption or conclusion of fact or law but shall be held solely to provide for trial upon facts as may be alleged. Approved, June 25, 1938. [52 Stat. 1197.] 1 So in original. SUITS UNDER ACT OF JUNE 25, 1938 ORDER OF FEBRUARY 1, 1939 IN RE: SUITS TO RECOVER INCREASED COSTS, IN CONNECTION WITH GOVERNMENT CONTRACTS, RESULTING FROM THE ENACTMENT OF THE NATIONAL INDUSTRIAL RECOVERY ACT, APPROVED JUNE 16, 1933 MEMORANDUM AND ORDER AS TO PROCEDURE IN SUBMITTING PER CURIAM: Three hundred and twenty-five suits of the class mentioned above have been instituted in this court. In each case the plaintiff seeks to recover increased costs alleged to have resulted from the provisions of the National Industrial Recovery Act, approved June 16, 1933, 48 Stat. 195; Tit. 15, U. S. Code, secs. 701-712, for labor and materials or other matters in connection with the performance of Government contracts. Some of the plaintiffs are prime contractors with the Government; others are subcontractors and persons or firms who furnished materials for use in the performance of Government contracts. For the most part the cases involve claims by subcontractors and materialmen whose claims were rejected or not acted upon by the Administrative Departments of the Government as not coming within the provisions of the act of June 16, 1934, 41 U. S. Code, secs. 28-33. Section 3 of the act of June 25, 1938, under which these suits have been instituted provides, among other things, that "judgment or decrees k * * under this Act shall be allowed upon a fair and equitable basis * *." And Rule 1 of the Rules of Civil Procedure adopted by the Supreme Court of the United States states one of the objects of the rules to be "to secure the just, speedy, and inexpensive determination of every action." * In the main, and particularly with reference to the greater part of the proof to be submitted in support of the claims in suit during the first stages of the hearings, the cases all involve matters of audit and accounting, the preparation of detailed audit reports and supporting explanations from the books and records of the plaintiffs as to labor, materials, and other direct and indirect costs before and after the enactment of the National Industrial Recovery Act. In addition, it is necessary to an understanding of such audits and to the proper proof and establishment of the claims asserted in the suits filed in this court XXIV that these audit reports be accompanied with full and complete explanations of the nature of the costs disclosed by the figures set forth, and a full explanation after the order of a Bill of Particulars as to the basis and the reasons for the claim asserted in this court that the items of increased performance costs and expenses shown resulted from the enactment of the National Industrial Recovery Act. In these circumstances the court is of opinion that, in order to save time and expense to all concerned, and in order that the evidence in the cases may bè presented to the court in a more condensed, inexpensive, and orderly manner, each plaintiff should, prior to the taking of any proof before a commissioner of the court or by depositions, prepare and furnish to the Assistant Attorney General of the Claims Division of the Department of Justice a detailed audit report with supporting schedules giving specific references to the books and records supporting the schedules, and written explanations in the nature of a Bill of Particulars giving the basis of the claim in suit that the increased costs were occasioned by the passage of the National Industrial Recovery Act. This audit, supporting schedules, and explanations should be sufficiently complete and in such detail that, as far as practicable, such testimony as may be necessary to be introduced on behalf of plaintiff at a subsequent hearing before a commissioner may be confined to the matters set out in the audit and statements insofar as the facts with reference to increased costs of performance are concerned. This audit report may be prepared by plaintiff's regularly employed auditors or officers, or such other auditors or accountants as the plaintiff concerned may choose. By reason of the nature of the case, it appears that the facts and figures contained in these audits and explanations will be an essential part of the proof in the cases, whether such facts and figures are first submitted to the Attorney General and later stipulated or offered in evidence, or first offered in evidence before a commissioner of the court. It is clear that counsel for defendant would not be in a position to examine and check the audits or be able properly to cross-examine plaintiff's witnesses thereon without delay if such audit reports and the books and records, together with oral testimony in explanation and support thereof, were first made available to Government counsel at a hearing before a commissioner. Experience in a few of the cases has shown that it is necessary to adjourn the hearing to a future date in order to enable Government counsel and auditors to study and analyze the audits in the light of supporting explanations and testimony and in the light of information obtained by a Government examination and check of the audits against the plaintiff's books and records. The expense of this preliminary hearing and perhaps more could be avoided by following the procedure hereinbefore outlined. Submission of these audit and accounting reports and explanations to Government counsel before evidence is formally submitted before a commissioner of the court will enable Government counsel, with the assistance of Government auditors if deemed necessary, to check and verify the facts and figures in plaintiff's audit and explanations with the books |