The opinion
Disney, J., dissenting: I can not agree that we do not have jurisdiction in this matter. Of course, the fact that neither party raised the point does not preclude our doing so, but I think the majority opinion incorrectly finds lack of jurisdiction. Section 403 (a) of the Renegotiation Act provides, in pertinent part, that a contractor or subcontractor aggrieved by a determination of the Secretary with respect to a fiscal year as to the existence of excessive profits, which is not embodied in an agreement, may file his petition with this Court.
First, the majority opinion, both in headnote and in body of the opinion, seems to base its conclusion upon the fact that the order was not with respect to a fiscal period, but only to a part of the business of a part of a fiscal year. I can not believe that the intent of the statute is to preclude jurisdiction on such grounds. The mention of fiscal year in the statute has reference only to whether the period involved is before or after July 1, 1943, or the enactment of the Revenue Act of 1943. I would not refuse jurisdiction on so narrow a ground.
Second, it seems to me that, in strict line with the language of section 403 (e) (2), we have here a matter of excessive profits “not embodied in an agreement with the contractor” because the agreement of August 7, 1942, between the petitioner and the respondent specifically permitted reopening of the renegotiations if the result of actual operations from May 1 to October 31, 1942, was substantially at variance with the estimates made for such period, with provision that such negotiation should relate only to such variance. The facts found show that the estimated result, that is, profit, was only $1,210,-242.13, whereas the actual result in profit might have been as great as $2,025,984. The respondent, therefore, in strict conformity with the contract, reopened the negotiation as to the variance. It seems to me that in order to arrive at jurisdiction we need only to determine the fact that there was a difference between estimate and result, that the contract plainly provided therefor, and that the respondent, accordingly, reopened the matter to the limited extent provided in the contract. It is our power and duty to decide such facts. I note that the conference report on the bill, as quoted in the majority report, refers to the Senate amendment as limiting review of determinations “to those which have not been agreed to by the contractor * * * ” The review here at hand, being specifically and carefully excluded from the agreement, was, it seems to me, intended by Congress to have our consideration. In my opinion, decision of this matter comes well within the ambit of the task which Congress assigned to us, and I do not think that body intended to leave it to other courts, as the majority opinion does. Rather obviously, Congress did not wish the matter of renegotiation to be cognizable by the courts in general, and a case to come under the jurisdiction of such courts would, as I see it, require a much stronger showing than appears here. In my view, we should exercise jurisdiction and decide the case.
Van Fossan and Black, JJ., agree with this dissent.