A suit for damages under § 26(b)(1) of the Surplus Property Act is not a suit to enforce a civil fine, penalty or forfeiture and, therefore, is not subject to the five-year limitation of 28 U.S.C. § 2462. Rex Trailer Co. v. United States, 350 U.S. 148.
255 F.2d 865, affirmed.
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE WHITTAKER join, dissenting.
I do not agree that disposition of this case is controlled by the decision in Rex Trailer Co. v. United States, 350 U.S. 148. Believing that § 26(b)(1) of the Surplus Property Act of 1944, 40 U.S.C. § 489 (b)(1), imposes a civil penalty, and that an action thereunder is therefore subject to the five-year limitation provided in 28 U.S.C. § 2462, I would reverse. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537; Erie Basin Metal Products, Inc., v. United States, 150 F. Supp. 561 (Ct.Cl.). See Priebe Sons v. United States, 332 U.S. 407.