
    KENTUCKY METAL PRODUCTS COMPANY, A CORPORATION v. UNITED STATES
    [No. 44410.
    Decided May 7, 1945]
    
      'Mr. Wm. E. Carey for plaintiff.
    
      Mr. Fred B. Rhodes was on the brief.
    
      Mr. Armistead B. Rood, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant.
   Opinion

per Ouriam:

The amount of increased cost for material claimed in this suit is $1,286.84 for the ten subcontracts ; the claimed increased costs on the Billings, Mont., and Jonesboro, Ark., subcontracts are $12.46 and $2.87, respectively. No increased costs prior to August 10, 1933, are claimed.

On the evidence submitted plaintiff has not shown what amount of increased cost, if any, was incurred for material as a result of enactment of the National Industrial Kecovery Act.

On the two subcontracts and the eight sub-subcontracts mentioned in the findings plaintiff incurred increased labor costs of $1,106.04 subsequent to August 10,1933 as a result of the enactment of the National Industrial Kecovery Act, but plaintiff filed claims for increased costs under the act of June 16, 1934, only with respect to its two subcontracts in connection with the buildings at Billings and Jonesboro, and the increased labor costs incurred under these subcontracts amounted to $13.36 and $0.30, respectively. Plaintiff says, however, that as to eight of the buildings in respect of which it did not file claims it was a sub-subcontractor or materialman and, as such, could not recover increased costs under the terms of the act of June 16, 1934. It is true that the Comptroller General had held on April 4, 1935, and July 21, 1936, as shown in John B. Kelly, Inc. v. United States, (May 2, 1938), 87 C. Cls. 271, 272, that sub-subcontractors or materialmen furnishing labor or material to a subcontractor were not entitled to claim and be allowed increased costs under the act of June 16, 1934 (48 Stat. 974), but sec. 1 of the act of June 25, 1938 (52 Stat. 1197), authorizing suit in this court, makes no exception in favor of anyone (except as to the period June 16 to August 10,1933) who had failed to file a claim within the time prescribed by sec. 4 of the act of June 16, 1934. See Report of Committee on the Judiciary, House Report #2609, 75th Cong., 3rd sess. The court can make no exception in plaintiff’s favor. Its only remedy for the admitted increased labor costs resulting from the enactment of the National Industrial Recovery Act of $1,092.39, in excess of the amount of $13.65 allowed herein, rests with Congress.

Judgment will be entered in favor of plaintiff for $13.65. It is so ordered.  