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TILBROOK v. FORRESTAL

April 3, 1946

TILBROOK
v.
FORRESTAL et al.



The opinion of the court was delivered by: MILLER

 Claiming to act under the authority of the Renegotiation Act of 1942 (Act of April 28, 1942, ch. 247, Title IV Sec. 403, 56 Stat. 245, as amended Oct. 21, 1942, 56 Stat. 982, 50 U.S.C.A.Appendix 1191), an authorized representative of the Navy *fn1" unilaterally determined on June 29, 1945, that the plaintiff had realized in 1942 excessive profits of $ 25,000. A copy of the order so determining was sent to Tilbrook. On September 13, 1945, the Navy informed the plaintiff that after allowance of the tax credit provided for by § 3806 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 3806, the net amount due to the United States under the determination of June 29, 1945, was $ 18,123.68. Payment of the net sum within ten days was demanded, failing which the Navy warned Tilbrook that recourse would be had to the methods provided by law for enforcing collection. This letter of demand did not specify which of the several methods of coercing payment authorized by the Act *fn2" would be employed.

 In these circumstances the plaintiff filed this suit on September 22, 1945, within the period of ten days given for payment, against James V. Forrestal, Secretary of the Navy, Artemus L. Gates, Undersecretary of the Navy, and W. L. Hudson, Chief of Services and Sales Renegotiation Section of the Navy Department, in which he sought

 '(A) to restrain the defendants and each one of them from renegotiating the plaintiff under the Renegotiation Act for his business of the year of 1942 on the grounds that said Act is repugnant to the Constitution of the United States.

 '(B) to restrain the defendants from enforcing or further proceeding under a decision entered by said defendants under said Renegotiation Act on June 29, 1945, as hereinafter fully set forth, whereby defendants have determined unilaterally that the plaintiff has derived excessive profits of $ 25,000 from his profession during the year of 9142.

 '(C) to compel the defendants to withdraw the unilateral determination referred to under Section 11, hereinafter, and restrain them from entering any such or similar orders for the purpose of recovering what is alleged to be excess profit from operations during the year 1942.

 '(D) a declaratory judgment that the plaintiff is not subject to renegotiation for his fiscal year ending December 31, 1942.'

 On October 9, 1945, the plaintiff filed a motion that a three-judge court be constituted and convened pursuant to Title 28, § 380a, U.S.C.A., 50 Stat. 752, and on the same day entered a motion for

 'A temporary restraining order restraining the defendants from issuing withholding orders to any of the principals of plaintiff for the purpose of collection under the unilateral determination of June 29, 1945, or if such withholding orders have been issued already, to enjoin the defendants and each of them, their agents, servants, employees or any other persons acting under their authority from accepting or receiving any payments under such withholding order.'

 Oral argument on this motion was heard by Mr. Justice Letts on October 17, 1945, at the conclusion of which the court indicated its intention to grant the motion pending a hearing by the three-judge court on the plaintiff's motion for a temporary injunction. Thereupon defendants' counsel agreed with the court and opposing counsel that withholding orders would not be issued prior to the hearing concerning the motion for a preliminary injunction, and in consequence a formal restraining order was not entered.

 At this, or perhaps at a later, conference between Mr. Justice Letts and counsel for both sides, it was announced by counsel for the defendants in this case that the Secretary of the Navy intended to request the Attorney General to file an action at law against Tilbrook to recover the sum of $ 18,123.68 claimed to be due to the United States under the determination of June 29, 1945. On November 7, 1945, the United States filed an action at law against Tilbrook in the Western District of Pennsylvania, in which judgment was sought for the sum of $ 18,123.68, the net amount, after the tax credit, determined by the order of June 29, 1945, to be due.

 Later it was made to appear in the present action, not only by affidavits filed in the record but also by the unequivocal assurances of counsel for the defendants, both in briefs and in oral argument, with full authority from the Secretary, that the Navy Department intends to rely solely and exclusively upon the action at law at Pittsburgh to recover the sum claimed from Tilbrook for 1942, and that no withholding order will be issued. We accept these assurances as an administrative commitment binding upon the Navy Department in the future concerning efforts to collect from Tilbrook the alleged excessive profits of 1942. *fn3" This being true, the irreparable injury which Tilbrook feared he would suffer if withholding orders were issued to his principals cannot occur, and the controversy set forth in the complaint as amended becomes moot. In view of the removal of the threat of issuing withholding orders, the allegations of the plaintiff cannot serve as a basis for considering the constitutional and other questions presented. *fn4"

 Moreover, the action at law pending at Pittsburgh, being a proceeding in which the United States itself is a party, affords to Tilbrook an opportunity to urge the unconstitutionality of the Renegotiation Act, to argue that the Act does not apply to him because he had no privity of contract with the Navy Department, and to present any and all defenses he may have. This he may do in that action, free of the jurisdictional difficulties which beset him here because the United States is not a party to this suit, and in the Renegotiation Act did not consent to be sued. By voluntarily entering the Pittsburgh forum, the United States opened wide to Tilbrook the gate of litigation. The plaintiff concedes in his brief the elementary proposition that generally there is no room for the exercise of equity jurisdiction, where there is a clear, full and adequate remedy at law, which bars resort to equity. Consequently, under the established principle and by the plaintiff's own admission, there is no equity jurisdiction here because of the filing and pendency of the action at law in the District Court at Pittsburgh which affords him a full opportunity to present all his defenses against the sovereign itself.

 But the plaintiff maintains that the Pittsburgh action was filed in violation of the agreement made by counsel in the conference with Mr. Justice Letts to which we have referred. He also urges that the suit at Pittsburgh was filed in defiance of this court, as the purpose of this suit not only was to enjoin the defendants from issuing withholding orders but also to enjoin them from taking any steps to enforce collection; and that, although no temporary restraining order actually had been entered by the court, it is the duty of defendants in an injunction suit to maintain the status quo ante pending judicial determination of the issues. Accordingly the plaintiff entered a motion that the court command the Secretary of the Navy to ...


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