# Industrial Uranium Company v. The United States

> United States Court of Claims · May 12, 1967 · 376 F.2d 868

URL: https://www.frixlaw.com/law-library/cases/9452705

## Case

- **Full name:** INDUSTRIAL URANIUM COMPANY v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** May 12, 1967
- **Citations:** 376 F.2d 868; 180 Ct. Cl. 50; 1967 U.S. Ct. Cl. LEXIS 75
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Nichols, Cowen, Lara-More, Durfee, Davis, Collins, Skelton
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NICHOLS, Judge
(dissenting):
In his ultimate findings, now discarded by the court, the Trial Commissioner, Paul H. McMurray, reported that “no ores of plaintiff were ever purchased under the terms and specifications of Circular 5, because such ores did not meet the specifications of that Circular.” I agreed. The court holds, however, that under the commissioner’s findings of underlying facts, which it does not materially alter, a major part of plaintiff’s ores were so purchased. I say major part on the basis of plaintiff’s figures in its brief. If it is right, it has won its case as completely as most litigants expect to do, despite losing some debating points in the court’s opinion. In further proceedings under Rule 47(c) the record already made will, I believe, permit a calculation of plaintiff’s recovery. It will surely be substantial. How was it possible for such a divergence to occur?
The difficulty is, as shown in the settlement certificates in evidence in plaintiff’s exhibit 38, that the lime content in plaintiff’s shipments was not uniform. High in some shipments, it was low in others and apparently totally absent in some. The court views each separate shipment as a separate sale. The commissioner did not, as I construe his original report. The question is, as I see it, whether the guarantee in Circular 5 to pay for vanadium content, whether or not wanted or used, applies to a producer who never offered ore uniformly low in lime as the Circular required and never purported to be able to meet such a specification, whenever a separate shipment of his happened to meet it nevertheless.
The court achieves the result it deems just by interpreting out of existence a clause in Circular 5 which reads as follows:
(e) Deliveries in excess of 1,000 tons per year. Sellers desiring to deliver in excess of 1,000 short tons (2,000 pounds per ton) of ores during any calendar year [this would have included plaintiff] will be required to enter into a contract with the Commission providing for, among other things, a rate of delivery and the total quantity of ore to be delivered.
The fact plaintiff made no contract directly with the Commission covering the period in litigation I consider the court has a satisfactory answer to. Behold, however, what the court also says:
Paragraph (e) merely provided that, for the convenience of the purchaser and the orderly carrying-on of processing, shipments in excess of 1,000 tons [per year, I presume] would be made under advance written arrangements as to time, rate, and amount of delivery.
Let us see what an important part of Paragraph (e) is thus invisible to the court. Obviously, one of the “other things” would have to be the matter of specifications. It is scarcely conceivable the Commission intended to make contracts without specifications. There would be a great difference between a *877 seller who offered to deliver a given quantity meeting a given specification as to lime content, and one who offered to deliver the same quantity with mere willingness to take a penalty for excessive lime. The lime was penalized because it was thought to cause manufacturing difficulties. It would be just as difficult to schedule production in face of ignorance as to the lime content of future deliveries as it would be in face of ignorance as to time or quantity of such deliveries. Accordingly, I hold that Paragraph (e) definitely limits the commitment in Circular 5 to those who contract beforehand to deliver ore in a specified quantity meeting Circular 5 quality specifications, except as to producers of under 1,000 tons. The AEC made it clear in the note the court refers to that high-lime producers were to be dealt with under contracts, other than Paragraph (e) contracts.
The court further says:
The mere fact that plaintiff’s sales were under contract is irrelevant to their coverage.
The court surely cannot imagine that plaintiff could have simply dumped in excess of 1,000 tons per annum at the door of the Monticello plant and have expected payment, without any contract, either under Circular 5 or under the various high-lime announcements, referred to in the findings, but this is what it seems to say, and has to say to maintain its position. That is, if the Commission took such dumped ore, it would have brought it under Circular 5 to the extent it was low in lime. Of course, there would be no objection to a single contract to deliver, as separate items, low-lime and high-lime ores, and Circular 5 would then cover the former. But I find Paragraph (e) an absolute unambiguous bar to extending the Circular 5 guarantee to low-lime ore shipments delivered under a high-lime contract. I think the court has read ambiguity into it to achieve the result it considers just. And perhaps the result is just, but a commitment to pay for unwanted and useless vanadium is not exactly the kind of commitment to be extended beyond the carefully spelled out intention of its authors. At least, not in my view.
The court lays great stress on the subjective impressions of the plaintiff as to what its rights were. Yet plaintiff surely must have consulted counsel on a matter of such importance. We have no finding or request for a finding as to what counsel advised. If we start speculating what counsel would have advised, we meet ourselves coming back. This case reflects an instance of the alternation of wild extravagance and mean economy, too often typical in Government procurement policy. As long as the former phase continued, plaintiff’s position was secure. But I for one would have advised that on the relapse to mean economy, inevitable sooner or later, the continuance of payment for unwanted and unused vanadium was hardly to be counted on. Plaintiff then would need a copper-riveted commitment, which Circular 5 would hardly have impressed me as being, with respect to plaintiff’s operation at any rate. Plaintiff’s subjective impressions and those of other parties were anticipations that the extravagant phase would continue, and not guides as to the extent of the guarantee legally enforceable when the mean phase set in.
Thus, in my opinion, Circular 5 was a commitment to pay for unused and unwanted vanadium only to small producers (under 1,000 tons a year) and producers who offered and contracted in advance to deliver ore in stated quantities on stated dates, meeting the specifications set forth in Circular 5 as to origin and chemical composition. Under that standard, the commissioner was right in finding that no ores of plaintiff were purchased under Circular 5, and plaintiff should not recover anything in this action.
Once litigation commences, parties sometimes labor to adorn the previously barren landscape with thickets of dubious contentions, many not previously heard of. This is rationalized on the theory that judges are unpredictable and no *878 one can tell what ratio decidendi will appeal to them. No doubt this is valid in its place, but it involves a risk. Before the court has ever cut its way to the real heart of the controversy, it may have formed a belief that the claim is supported by false facts and reasons, or that the defense is merely technical and inequitable. The court in breaking through the thicket may generate so much momentum it smashes right on into the plate-glass picture window. Gazing at the wreckage herein, I conceive that something of this kind has happened. Thanks to all the underbrush, 90% of the court’s opinion would have been the same whichever side prevailed, and that 90% of course I would have joined in. I would have turned aside when the plate-glass was reached.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9452705. Public record. Not legal advice.