
    UNITED STATES et al. v. HOPKINS.
    Civ. No. 25224.
    United States District Court N. D. Ohio, E. D.
    Aug. 1, 1950.
    
      Don C. Miller, Dist. Atty., Cleveland, Ohio, for plaintiffs.
    John J. Collins, Cleveland, Ohio, Brundage & Short and Chas. F. Short, Jr., Chicago, Ill., for defendant.
   JONES, Chief Judge.

This is an action by the Government to recover excessive profits made on war contracts. The Government has moved for summary judgment upon the pleadings.

Defendant was served with the unilateral order of the board which determined the excessive profits, and within ninety days he petitioned the Tax Court for redeter-mination of the excess profits. This action is still pending before the Tax Court. Defendant contends, therefore, that this motion is premature and that the action should be stayed until the Tax Court has had the opportunity to redetermine the amount of excessive profits.

However, the statute, 50 U.S.C.A. Appendix, § 1191(e) (1), which creates the right to petition the Tax Court for redetermination also provides that that Court shall have exclusive jurisdiction to finally determine the amount of excessive profits received, and that the filing of the petition for review shall not operate to stay the execution of orders like the one which is the subject of this action. This Court, therefore, is not at liberty to stay this proceeding. See also, U. S. v. Clark, D.C., 72 F.Supp. 393, Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796.

Nor can this Court hear the defenses of unconstitutionality of the law, lack of coverage, failure of notice and the like as long as the action is pending in the Tax Court. That Court has exclusive jurisdiction and as long as the administrative remedy has not been completed, this Court cannot hear the defenses raised by the defendant. Lichter v. U. S., 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694, Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796. In this Court the action proceeds to judgment summarily. U. S. v. Clark, supra. The Motion for summary judgment will be granted.  