The opinion
Davis, Judge,
dissenting:
Although it is clear that Congress wished to protect the United States during court redetermination of a finding of excessive profits by the Benegotiation Board, there is absolutely nothing in the text of the Act or the legislative history to compel the requirement of a 100% bond or to forbid a bond in a lesser sum if it is deemed to be “good and sufficient.” I read our Bule 26 in the same way. Paragraph (b) provides that, normally and in ordinary course, a 100% bond is to be filed, but paragraph (e) says: “Nothing contained in this rude shall preclude the entry at any time by the court (or the commissioner [trial judge]) of an order requiring that the amount of the bond be increased or decreased, upon a satisfactory showing that such increase or decrease is necessary” [emphasis added]. This all-embracing language encompasses the possibility of a less-than-100%-bond, from the beginning, if such a smaller obligation is determined to be “good and sufficient” in the particular circumstances.
This plaintiff, within the ten-day period, proffered a 'TO % bond, asserting that (a) it was unable to obtain a bond in the higher amount, and (b) that the tendered bond provided the Government with better protection than could be obtained through seizure of the dissolved corporation’s assets under a judgment of the kind the court now grants. In the present posture of the case, these allegations must be accepted. If true, they seem to me to satisfy all the requirements of both the statute and Bule 26.1 would therefore remand the case to *199 the trial division to determine the accuracy of the company’s assertions. *
The conrt suggests that this procedure would force the court “to go into the bonding business.” I do not agree because I do not think that most, or even many, of the class of renegotiated contractors can make winder oath the allegations made here — that a 100% bond is unobtainable and that better protection will be afforded the Government by the proffered bond than by execution under judgment for the amount of the renegotiation orders. To allow this contractor the opportunity to prove its case does not mean that we have to do the same for others who cannot make the same assertions under penalty of perjury.
On the other hand, the consequence of the court’s ruling is that this contractor is put at the Government’s mercy — the Government can execute at will on the corporate property— even though, so far as we know now, the defendant does not need in this case such unlimited and potentially destructive power in order to be protected against loss. As between some inconvenience to the court and potential injury of this stripe to a contractor, I would choose the former. Indeed, the burden of litigation is likely to be less than we now have from contractors contesting the Government’s motions for judgment in aid of execution of the renegotiation orders (where no bond or less than a 100% bond is filed).
During the time the trial division takes to determine this issue, the Government -would he protected hy the 70% bond. If no bond at all is filed and the contractor litigates, as the court acknowledges he can, the defendant’s motion for judgment in aid of execution of the renegotiation orders, there is no protection at all for the Government during the period of consideration and determination of that motion.