*1 CONTRACTORS, E INC. S &
The UNITED STATES.
No. 104-67. States
United Court Claims.
Nov.
Geoffrey Jr., Creyke, Washington, D. , attorney plaintiff; C. of record for John Creyke, Washington, P. Wiese, Hudson & C., Locke, Purnell, Boren, D. Laney Neely, Dallas, Tex., & of counsel. Merow, Washington, C., James F. D. Atty. with whom was Asst. Gen. William defendant; Ruckelshaus, D. Edward Jerum, M. Vasiloff, and Vasil S. Wash- ington, C., Office, Accounting D. General of counsel. Keller, Comptroller
Robert F. Asst. General of the United filed a Accounting brief for the General Office curiae; Dembling, as amicus Paul G. Counsel, Accounting Of- fice, Vasiloff, attorney, and Vasil S. Gen- Accounting Office, Washington, eral D. C., on brief. COWEN, Judge,
Before Chief LARAMORE, DURFEE, DAVIS, COL- LINS, NICHOLS, SKELTON Judges. REQUEST ON FOR DEFENDANT’S REVIEW OF THE COMMISSION- ER’S RECOMMENDED OPINION NICHOLS, Judge.
This is a contract case us on before request defendant’s of our *2 however, opinion. discus- time, This settlement recommended commissioner’s finally interrupted termi- and extraneous sions were Stripped and of subordinate presented is the of the nated intervention central issues, the Accounting (GAO). Act, Office Our com- U.S.C. the “Wunderlich” whether certifying (hereinafter found that an AEC (1964) referred missioner §§ requested Act), from the GAO officer advice the Government affords as the to regard the of a certification review—coex- obtain a making payment for on voucher the of the contractor —of tensive with un- one of the successful claims. No mention tribunals administrative it, made made nor was advice solicited contract claims on favorable remaining concerning paying “disputes” out on standard in the course Despite of this claims. the narrowness Act. procedure under Wunderlich request, in de- advised the AEC plaintiff E August &S On (46 Comp.Gen. cision No. B-153841 Contractors, contracted with Inc. (1966)) payment the dis- on Energy (AEC) to Commission Atomic puted improper claims be because would facility testing the National build findings claims as to these AEC’s Perform- Test Idaho. Reactor Station supported by evi- were not substantial generated numerous of this ance on matters of dence and were erroneous properly contractor claims which decision, In view this the AEC law. contracting officer; those filed with plaintiff “ex- had informed adversely were contractor decided hausted its administrative recourse seasonably appealed to the AEC. Since * * * Commission. [and that] did not have a con- time the at this AEC taken the Commis- action be [would it, represent appeals board to tract claims, sion], in- connection with contractor, under the then current AEC’s expressed with the views consistent hearing ex- procedures, was referred to ** Comptroller griev- specially appointed to hear aminer B-153841.” findings of fact. Con- ances and render eight plaintiff’s sequently, claims were impelled plaintiff to This information hearing and examiner sustained bring suit this court. Cross motions contracting for officer remanded to the only by summary judgment supported for damage negotiation and on settlement counter-arguments arguments re- directive, Contrary questions. to this substantiality garding the evidential contracting petitioned officer AEC legal find- the AEC’s the ings correctness of findings hearing review the examiner’s submitted and conclusions were eight petition as to these claims. His however, He, our trial commissioner. re- accepted the AEC’s review disregard arguments in chose to these hearing sulted in an affirmance Essentially his favor other theories. eight findings on examiner’s seven fail- that the AEC’s recommends (The explains that claims. implement made its ure to own actually these the AEC did not affirm on provision under the contract’s claims, merely de- seven rather (which repudiation) “must be he terms dis- clined its to exercise certiorari-like regarded provision.” as a breach procedural This cretion to rehear them. suggests Moreover, in- he that the GAO importance to clarification is of no real legal substantiality and on on tervention however, analysis, our because the Gov- grounds its exceeded argument that ernment conceded at oral too “was therefore decision No. B-153481 claims these AEC’s refusal to review support a reed slender hearing give was itself sufficient to de- repudiation own Commission’s findings fi- examiner’s granted commissioner cision.” nality). judg- summary plaintiff's motion parties Again ment, have the rather than matter was remanded findings quan- go to the AEC for final settlement. back may great, lapse turn, be assumed to view of fail he concluded that continuing pay plain- Therefore, the Court House door. refusal AEC’s years necessary is not period since its for us determine what over of five tiff might decision, original relief there decisions he make what future they might brought inadequate have in and unavailable. cases be- *3 plaintiff’s Hence, fore us. When a Act case he recommends Wunderlich damages pending here, by question court under a is be fixed this is how finality findings 131(c) proceeding. points The are much attaches Rule holdings arguments up ably set made and the are sub- of the Board to exe- stantial, disagree. powers agency cute the of the head of but we premises. Really in the it makes no dif- running pervasive question ference whether now failure of de- through controversy this whether pay fendant out as the Board deter- at all to Government has a seek results, here, Comp- mined from the as judicial Act based on Wunderlich review charge implied troller General’s threat standards of its where a tribunal own certifying account, officer’s or from disputes creation issues a contract deci- change agency itself, of heart as sion favorable to the contractor. Should Langenfelder Son, was the case in C. J. & affirmatively, question this be answered States, Inc. v. United 169 Ct.Cl. we must also decide whether Govern- (1965). F.2d 600 hold that We either obtaining judicial ment’s method of re- event, pay a refusal defendant case, simply denying pay- lief this Board award is not a breach of the dis- proper. was ment putes clause if involved award is not tackling provocative Before ques- these supported by substantial evidence or oth- tions, appropriate we think it to define finality erwise is not entitled clearly perimeters analysis. of our the Wunderlich Act. The reasons background The factual indicates this view follow. Comptroller effectively stopped payment inquiry the claims. our focus of is the however, Act; wording Government, represented by as Wunderlich the exact Department, the Justice question the contract clause in which alone speaks court, says bearing, applied for it in has no as least been victorious case before us. said in an earlier default As we case, court at this had “it outset is the Act which Justice not Wunderlich Specifically, decided defend suit. determinative. minimal bounds of this argues judicial this be drawn from the decision to defend review must prompted by terms, any history, Act, requirement policy of that sort give mandatory policies speculatively opinions from defense drawn Comptroller General, the contract are themselves clauses which rather governed Langen product J. uninfluenced the statute.” C. the Jus- Department’s thorough Son, States, felder tice & Inc. United own in- dependent n. 7 Ct.Cl. n. F.2d at 607 review of the case. The De- partment (1965). considered the AEC’s decision erroneous on unsup- of law and matters Enacted in there- 1954 and unmodified ported by substantial evidence after, fol- Act reads as case before us. Counsel the Govern- lows: urges ignore ment therefore us to pleading Limitation Comptroller’s § being intervention tract-provisions relating to litiga- occasion but not the cause of the fi- nality; review standards way and in tion itself administra- having tive effect here or com- provision any entered No ing under our review. relating into the United any agree or conclusiveness Comptroller’s We powers any settlement, though department of decision decision of the head
tract, where Provided, ing less the same filed or to be sentative pricious tial evidence. word cision shall or representative roneous faith, any). shall be fraud or is or board or however, arbitrary be final not *4 necessarily his filed pleaded in arising (Emphasis such such or board is supported duly fradulent in a That and conclusive official decision to cases authorized or so limiting judicial under such con- dispute any supplied by (sic) grossly bad imply or his said suit such substan- alleged: involv- repre- now un- de- ca- er- posed their taxpayers make decisions adverse to the Govern- event an been that ment situation. deciding * * *. The enactment Wunderlich] burden, [******] And of statements legislation as well as review improper course, ** privileges. rule works improper burden, follows: Accounting contractors, *. The not [Supreme compass both A official sampling of such a Office infrequent experience results ways. Court’s of its can A preclude bill adminis- would [curative] making Contract-provisions § making trative from final de- officers questions on decisions final ques- matters cisions contract on law law, such tions of but would leave final shall con- No Government decisions for determination making Accounting provision tain a final on Office and the General question of law the decision of ad- courts. official, representative, ministrative or hand, permit On the other it would (Emphasis supplied). board. ques- them make on determinations ernment nor to whatever tended to both tive eral House of Strictly held full cisions duced to undo Judiciary, clause 338 U.S. H.R. 3634 and H.R. 6946. Before Sub- fraud. comm. No. to as the House ser. 12 (1953-54)), (1950), (1951); supports this U.S. history, equally and under like conditions contracting read making (Hearings and United hearings 457, Representatives 98, United States v. 82d extent contractor: albeit not the Act favors neither of the House 72 S.Ct. 70 S.Ct. Cong. Hearings); Hearings administrative final construction. Both the on various bills intro- prescribed, on H.R. parties. The Supreme (hereinafter States 1st and 2d 154, 288, 94 explicitly, the absence of judicial Comm, Wunderlich, 1839, Court’s de- the Senate L.Ed. Moorman, L.Ed. 256 seems referred legisla- on the S. Sess., Gov- gen- ex- 24, on ministrative tions the courts to be capricious, cious action by the be coextensive. tainly the also would effect through interests of the and less fice, eral a two-sided [******] Now, resort Accounting against of fact fraudulent, if the decisions were not found General we the General expensive rights feel, only protect by giving him, in et cetera. to review or remedy decisions adverse to the provide proposition. Accounting of contractors and the fraudulent, Office, courts, United ** arbitrary proceeding, would have final before the Gen- Accounting * a time a further States. Cer- Such a law The inter- protection, contractor arbitrary, Office or or addition saving should this is but capri- Of- ad- clearly 2487 Before the S. Senate Subcomm. of of the contractors are ests Comm, Judiciary, Cong., undoubtedly 82d involved. like- But (1952), (hereinafter 2d Sess. referred to involved are the interests of the wise Hearings). as the Spokesmen Senate I mean the Govern- Government. representing public private whole, just interests ment as a the Gov- presented contrasting pro- on the one de- represented views ernment as Division, contracting Attorney General, offi- Civil partment sistant one Justice; Department re- Id. at cer. Macomber, Jr., marks of Associate J. H. 9, 11, hearings, supra, at Senate Counsel, Ad- General Services General Yates, Assist- of Frank remarks L. ministration; 109-11, at remarks Id. Comptroller the United ant General Schultz; Id. at letter Franklin M. supplied). (Emphasis States. Lindsay Warren, Comptroller Gen- C. -x -x * * * * States; 138-139, eral of the Id. United position [As- Rogers, Deputy At- letter P. of William of Ameri- sociated Contractors States; torney of the United is: We believe ca] Cong.Rec. (1953), remarks 99th or head made McCarran. Senator bureau, agency, department, of a subject recorded review, Plaintiff concedes guarantee dialogue order that such decision and answer reasonable, regard Hearings made with due “show Con- House Senate rights contracting par- gressional that an of both the and intent awareness ties, supported up- the evidence of a contract resolution dispute on which such decision based. be amenable to review both (Senate supra, Hearings, contracting parties”, re- it denies never- *5 Hayes, reviewing authority marks of C. counsel for John “that theless tice. the contractor the Associated views, Phillips, attorney Department contracting America). posal now before fore the Court of ings, Government has but one department officer, [*] The essence of the original supra, (This that a second before -X- is one before a concerned, and a third be- (Emphasis at criticism was directed at officer]. proposal, [*] is to 16, General Contractors this remarks of Bonnell Claims, be [*] committee is that legislative pro- supplied). given the head Senate -X- [before contracting the draft while three of Jus- Hear- -X- re- trarily, matters be cisions.” speak be vested that tended to “under anything contemplated that forded cised Simply, plaintiff’s qualified [over vested with the had, cases of fraud and for the Government the Government the General involving other brand of be (Emphasis Wunderlich previous equally Wunderlich than the review Government “basic Accounting limited available times, supplied). position” argues gross Act, payment de- Act alone would review been was to be respect error] Congress function Office.” to both exer- Con- that af- in- and contractor. subsequently law). Government enacted into Specific testimony accurately Although citations to further ob- it has been history subject legislative on this are as follows: Senate the Act’s served Hearings everyone” (Kipps, something at 83-84, remarks of Gardiner “has Johnson, attorney law; Right Have at House Hear- Government ings 4, Elwyn Simmons, at Contract remarks of L. of a Board of Review Judicial President, Co., Appeals L. the Dis- J. Made Under Simmons Contrac- Decision tors; 286, 12, Harry Clause, putes at Id. statement of D. Pub. Contract L.J. representing (1969)), Con- Ruddiman certain contrac- we are convinced ; 19-20, through Hearings gress tors at received Id. remarks and letter of 32-34, Johnstone, attorney; presentation emphasizing Alan need more the Id. jurisdiction competent statement of the Honorable Edwin E. for courts of Louisiana) spon- (Representative, open parties. Willis committee both Hearings 6946; 38-39, resulting reports re- sor of H.R. from these remarks Id. Fisher, Counsel, adoption position. The of E. L. this Sen- General flect Accounting (S.Rep. Office; 48, accompanying Report S. Id. at remarks ate Cong., (1953)), Phillips, U. Bonnell As- 83d 1st Sess. Assistant No. * ** fact Cong. Admin.News, p. questions of law & U.S.Code contracts, arising under Act as Government the Wunderlich reflects clarify presently created subject nor is the situation modification to passed, decision consonant and oth- Comptroller status General’s everyone following with the tradition matters, observa- makes er day that con- his in court and have tion: mutually enforceable. tracts should be * * mind that also be borne It must (Emphasis supplied). *. [Wun- the same extent operate disad- would Considering language derlich] plain contractor, aggrieved vantage of the premises equity the Act the basic disadvantage operate to the also surrounding passage, our we reaffirm cases, as in those supra, of the Government reasoning Langenf elder, in C. J. happens, the contract- when sometimes ing Equipment Process Co. Acme detri- a decision makes officer 258-259, United Ct.Cl. interest to the Government mental (1965), and hold 347 F.2d 543-544 the claim. that the has the what taken wittingly, cheat the or not fraudulent, grossly taken as other tive,] charge ting head of an supplied.) decision of Office] -X- S. will aggrieved party to, *6 words, in those instances where corresponding decision, in order to effect collection and substantial evidence. supported him or a court with -X- necessarily rightfully due. it will not be have the effect with [Bracketed # [the either being which is erroneous, so language has wittingly [reliable, proba- imply respect to necessary language de- a fraud made, -X- found to be Accounting (Emphasis bad permit- effect, o£cun- -X- faith, 24S. or a mis- mis- of —as technique mary judgment titling doned the Government’s the tiff’s assertion must likewise recognize review on plaintiff breach of the trative dicial same extent as the contractor ready rejected Langenf “repudiation” reasons obtaining review way decision on a contract claim. Our commissioner elder —exercised that these two cases now questions of stated in those of an unfavorable “at of its own decision was forcing similar argues the Acme appeal. of law. The to automatic very clause suit in this positions Process, and for the fullest here least” cases, plain We withholding thereby the AEC’s ruled tacitly con to seek fail. adminis judicial instant court C. sum We en ju al J. *7 Disputes the con- under Clause Supreme rejected The Court rea- might finally each fully tract, as and “as soning. noticed that Court (1962). The Secretary.” 32 CFR 30.1 § findings Board’s as to the causes of Regulations contain Federal Procurement delays contractor’s were common to both provisions Serv- similar disputes claims for time extensions of Contract Board ices Administration damages. and It the breach claims for (1963). Appeals. CFR 5-60.101 41 § held therefore that where a Board makes Ad- Secretary Defense and findings scope disputes within the of its themselves to reserve ministrator GSA authority, finality presumed of these ratification of review findings statutorily prescribed to tried of them If one Board decisions. evaporate mere- Wunderlich Act does not pending in a do tell a Board what ly changing the labels on the claims. ex reprehensible case, commit he would case, however, con- is the Crucial our United parte approach. Camero cluding pronouncement by the made F.2d 777 375 179 Ct.Cl. 1560: at 86 at Court Utah S.Ct. (1967). and Act present think the Wunderlich In the case the Board was We it, interpreting Supreme acting judicial capacity Court in a when they attributing extent Drilling Pier and considered the Shield 1380 tary Boards, of these neces- of Defense has a Board
do to decisions established sarily expectation fully imply an him as he could bind binds as things himself, legal Boards, even as in the nature conclusions while courts, arbitrary capricious an independent as Article III will even case of decision, degree independence approach- enjoy he Board has created a Frank- ing temptation comparable of the various enstein monster. The to that either regula- appoint persons quasi-judicial independent to the Board who which, too, management tory and commissions would subservient boards findings. g. wishes, binding parte improper fact E. or to make ex can make Board, approaches, impossible 29 near would be National Labor Relations (1947); Ex- an resist. Within the four walls of Securities U.S.C. 153 § establishment, change Commission, executive the real inde- U.S.C. 78d § pendence suspect, (1934); of a Board Com- would be Federal Communications (1934); mission, the facts as to this be difficult Civil would 47 U.S.C. § by, come contractors could never be Board, 49 Aeronautics U.S.C. § getting they disputes (1958); sure were Commerce Commis- Interstate Having final, (1935). sion, would be insistence on it while 49 U.S.C. § mally court, this, not be reviewed inconsistent achieved would be able line to the Government would nor- to turn around and unfair for the law they procedures had clause what pretend and the the Board Sec- hand, Supreme retary tracted for. the other if the On were the same. The right Secretary has the to seek characterized a clause Court limitations, agreement within there of dis- Wunderlich Act “for the settlement safety manner”, is a and Boards can putes valve call in an arbitral they case, supra, cases as them without so much see 342 U.S. building pressure up. Appeals It would seem Boards S.Ct. egomaniac therefore, us, Board course, even the rest of sometimes like powers err, member would not desire the it is reason to believe but we see scant possesses. they asserted he closer to one his behalf think of themselves as enjoyed party Most of us have the blessed re- so than the other. To do saying: you high my lief of “If don’t are like demean the standards decision, open!” the courts are members of the bar. sworn to as Armed Board must consist Services laws, In the of revenue administration qualified attorneys admitted to the bar. the differentiation between administra- Board includes CFR 30.1. GSA § adjudication spelled tion and is often not lawyers panel at least three of whom each selecting out. The rule result is the must include one or more. 41 CFR 5-§ among possible interpretations law, requirements imply not 60.102. These appears likely the one that to raise the training only standards of education and name, most tax. This has a rule law- also standards of ethics. From yer members, believe, public principle, “Protect the Revenue” we conformity expect to Canon 13 heresy argu- which it is to abandon an *8 of the Canons of Judicial Ethics when legal reasoning able nonfrivolous line of they acting Supreme are in what the ground line, on the mere that another quot supra, “judicial Court calls a ca- generating revenue, appears less to be pacity.” Canons 24 and have 29 also right. Abandonment of the most favor- special application lawyer to members of produces judicial review, and is the Appeals Contract Boards. controlling why reason the administra- tor-adjudicator apt prefer to the lat- think, existing We in the circum- extinguish ter. From these observed facts it seems stances, a Board controversy agreeing merely by case or truly impartial clear that decisions aof always with the independent contractor is inconsistent with and tribunal independence. If, g., reviewable, true equally the be e. Secre- for whomsoever procedures are, as remain as there principle is of this Breach decides. diligence special part is need for on the decisions. prime of slanted cause moving keep of all concerned to cases noted, already true, have we It is along multiplication and avoid of need- delegated dis- had the AEC maneuvers. less technical independent powers to an putes clause foregoing, In view of the this, however, we remand the situation Board. the case to the commissioner for are his con- think we We unusual. was somewhat report sideration and on position of the the analyzing various the justified in light claims under Act Supreme Wunderlich standards. Congress Court the and delegation knowledge of their independent SKELTON, Judge (dissenting): and common then Board was the so. remain Since would doubtless This court should not consider nor act Act, head of the alleged “appeal” on the filed the At- acting in a appear to be would torney General in this case for the himself capacity he reserves when reasons set forth below. disputes adjudication a claim Controversy There is for the nonce procedure. hasHe Between the clause managerial responsibilities aside Energy and the Atomic set his Plaintiff he Commission hat. Otherwise on the Facts or put another on Law and claim Wunder- This Case not be entitled would against his decision lich Act elementary It is that a court will not employment, attack. a contractor’s consider a case unless there is a con- hearing fa- case, examiner in this troversy parties between the on the facts roles, and differentiation cilitates this law, or on the or both. No such con- Despite the sham. more than a makes it troversy exists here. The contract was emphasis our dissenters of one of made plaintiff between the and the independent in this Board anof absence Energy Atomic (AEC). Commission involved, powers here to execute case They included the “disputes” standard legal why conse- is offered no reason agreement clause in the which estab- distinction, from the quences should flow procedure lished the presenting, If appear there are none. and it would sidering, appealing, settling claims action obliterated the AEC’s we held disputes. During performance to hold that dispute, we would contract, disputes did occur and created would Board it of a decision plaintiff presented the claims involved the same. do here to contracting officer, who rejected defendant plaintiff on behalf them. duly assured ap- areWe pealed past spar- AEC, has in the GAO who that ingly tripped referred the implementation of a claims up to an examiner. The examiner contractor, heard the to a evidence favorable Board decision handed down his charge threatening a cer- decision. ap- means of pealed account, otherwise. tifying officer’s examiner’s decision to AEC, exercise will infer it who are asked modified We the examiner’s so, If future. eventually in the decision and like self-restraint issued its own not be opinion. decision will of our effect All of this was already deplorably done in further the strict accordance encumber with the adjudi- disputes rocky agreement final clause road slow parties. accepted cation of Government not, this If agreeable Act. under Wunderlich AEC and is disposition attention further for the its claims *9 warranting Congress us than rather in such decision. set forth manner purpose the frustrating as to may circumstances, its evident one these Under logically availability judicial review is the where question, the mutual ask full long Clearly controversy is none. there ? statutory As standards. the appears here Department only complaint who Justice, the has is The only attorney The paid the for the AEC.2 and its as it has not the fact that been disposed of in no asserts none. ac- AEC has claim and not been claims have the AEC the decision of cordance with Reversed, Modified, The AEC Has not effect, agreed. In the has to which it Changed Cancelled, Aside, or Its Set parties settled their contract have the Any Way Decision in cover- to the extent are differences sense, by In the ed AEC decision.1 why compelling we Another reason parties here could be situation of appeal filed should not consider litigants that of whose dis- likened to agreements Department fact is the Justice ac- have become stated time AEC never course, juris- count. this court has Of aside, reversed, modified, cancelled, set plaintiff’s claim diction to be- entertain changed its final decision between paid provided it not cause been 1964, May 13, time was it issued on the AEC decision. 11, April the date this suit filed on was hand, no On other AEC has 1967, or thereafter. therefore, right and, appeal claim, concluding It will be noted that Actually, it has assert- in this case. paragraph of the final of the AEC order any right appeal nor ed claim May 1964, provided: shows, 13, here. far as the record As willing handed down decision proceeding is remanded to the carry it out and would have done so contracting officer with instructions unjustified it not for the had completely been proceed to final settlement or deci- unauthorized interference sion in accordance with the decision Accounting (GAO), Office hearing examiner dated June which will be below, in more detail discussed as modified our order attempt by Depart- 14, 1963, November this deci- ment of its Justice substitute fact, sion. the decision of the AEC. @AO were not for the action of the Energy United States Atomic Commission Justice, Department and the the AEC Seborg Glenn T. /s/ willing implement Seborg Chairman Glenn T. time, present because Palfrey John G. /s/ nothing there in the record that Palfrey Commissioner John G. Ramey it would noiTdo so. As shown James T. indicates /s/ Attorney agrees below, the Ramey Commissioner T. James Tape Gerald F. /s/ changed the AEC’s decision has not been Tape Commissioner F. Gerald willing and the AEC would be to enforce it. B.W. McCool /s/ McCool, Secretary W. B. government AEC the as far as This decision has never been reversed plaintiff’s contract is concerned. It is changed any way. act only party the plaintiff. to the contract besides the the AEC after this decision was sign handed GAO did not agreement writing down party and is not a of a to this letter dated suit. The same is true respect March Hollingsworth, B. E. decision, 1. The AEC part, for the most de- Energy 3. Before the United States Atomic liability termined government Commission, In the matter S. E.& plaintiff, leaving plain- Contractors, amount Under No. Inc. Contract AT tiff is to receive to be (30-3) determined later 790 Docket CA-161 Nos. officer, subject plain- CA-162, May 13, 1964, pp. Decision of provided tiff’s brevity, 14-15. For the sake of the com- disputes clause. plete reproduced are here. 2. This will be fully discussed more below. *10 repudiated AEC, the deci- Manager the at- has not [AFC] General and, sions involved in this matter in plaintiff, stated: torneys *- fact, plaintiff relying pur- on the ***** is ported finality in- the decisions Energy Commission’s Atomic litigation. volved in this Should Contractors, Inc. that is S&E view adversely Court our assertions rule re- administrative its has exhausted finality issues, on the merits The Com- to the Commission. course promptly then the Commission will action, connec- in no will take mission proceed implement the decisions. claims, with inconsistent tion with * * * sup- [Emphasis at n. [/d 4.] Comptroller expressed the views plied.] 5, opinion of December his in General unqualified This is an admission that 1966 —B-153841. the AEC decision has reversed not been Sincerely yours, changed any way, or in but is still Hollingsworth B. E. circumstances, force. Under these there Manager (the government) is no claim of the AEC although signed by letter, This before court in this case. A further general manager, the of- AEC’s Attorney along admission AEC, but ficial action page line is found on 8 of Defend- manager’s opinion the view of as to Reply Response ant’s to Plaintiff’s said to be if could be But even it AEC. Request Defendant’s for Review of the AEC, it does not the action of the Opinion, Commissioner’s Recommended modify way final reverse where it is stated: May It informs of the AEC of * * * jf we are not successful plaintiff it has exhausted establishing deci- the Commis- recourse to finality, obviously upon sions lack telling way of This is another sion. judicial ruling effect, they final to that plaintiff the AEC that the decision of promptly implemented. nothing more that and there is final [Emphasis supplied.] the AEC. to do with needs letter the AEC said in the above When Question Théte is no Need to Reach the take no action connection it would Agency Whether an can Executive of appeal with the with the claims inconsistent a Board’s Adverse Deci- saying simply it GAO’s opinion, sion, Agency as There is no such as it its decision as far was concerned Appeal nor a Board’s Decision In May did and it was final this Case anything intend to do further majority The decision of the that an respect the claims involved. agency appeal executive can to this court Actually, anything has not done from a Board’s adverse decision is wide May 13,1964, further, and its decision of the mark and must be considered as still stands. pure because dicta, there is no Attorney As matter fact, from a Board’s agreed the AEC has not General has this case. repudiated promptly its decision will proceed implement it if this court so majority approaches problem orders. This is shown Defendant’s AEC, if the agency, executive Request Commis- Review appealing from an adverse decision of an Opinion sioner’s Recommended filed Board. quasi-independent independent or 21, 1969, herein on November where fact, all. That not the situation following appears: statement At the involved. kind is Board arose, knowledge did not the AEC to date case To our time this appeals under the a Board to hear the Commission
[.November 1969] A, 8, plaintiff’s petition. page 4. Exhibit *11 ap- tribu- of administrative disputes decisions of clause. When ** *. pealed of the con- nals to it [Em- from the decision unfavorable directly tracting officer, appealed phasis supplied.] he not have the AEC did the AEC. Since running pervasive The board, appeal appeals it an referred the through controversy is whether this hearing who heard the to a examiner, right a at all to on June case and a decision rendered judicial seek review based on Wunder- appealed The 1963. a tribunal lich Act where standards and the AEC from decision its own a contract creation issues of modified it somewhat its deci- AEC decision favorable sion 1963. The con- of November [Emphasis supplied.] tractor.5 tracting officer was still satisfied When a Act case is rehearing. and for a AEC asked pending here, only question is how again granted rehearing and modi- findings much attaches by its final decision of fied the holdings wp and the Board set of So, case, May in this we do not 1964. powers execute the head of of all, but on the have a board decision agency premises. [Emphasis in the other hand we have not one decision supplied.] itself, but two decisions the AEC both Really it makes difference now were rendered after whether the failure of defendant examiner had down his decision. handed * pay as out the Board determined *. facts, it is erroneous to Under these hold [Emphasis supplied.] appeal AEC, is there * * * holdWe a refusal involved, agency executive pay defendant Board award is not Board adverse decision. * * dispute *. breach clause if majority opinion It true [Emphasis supplied.] recognizes that the decision in this case majority opinion then discusses was made the AEC and not a Armed Services Board and and GSA acknowledging Board. But after -this independence their from review fact, put ignored aside and is as far Secretary Administrator, respective- the ultimate is concerned. ly (as here), if that were situation pages Many opinion are devoted saying: independence, a discussion Under the Armed Services GSA honesty quasi-judicial character of * * * operate contracts the Boards Boards, why independently procurement au- “government” ap- should be allowed to Secretary thorities. *. The peal (with- from their adverse decisions Defense and the administrator GSA government saying out who is or who reserve to themselves no government appeal (through can review ratification Board deci- Attorney attorney [Emphasis supplied.] sions. spokesman)). following excerpts clearly from the indicate that We think the Wunderlich Act and premise based the erroneous Supreme Court decisions inter- in this case is an executive preting it, attributing finality agency from an adverse decision aof extent do to these Board: an, Boards, necessarily imply expecta- * ** * ** tion that the Boards will question pre- [T]he central degree enjoy independence ap- sented is whether the Wunderlich Act proaching ** comparable to that of affords the Government a quasi-judicial the various boards and to obtain interpret I the words “administrative to mean creation” and refer to Boards and tribunals” and “a its own tribunal not to tbe executive itself. Branch, majority of C. the cases J. cites in the Executive commissions Son, Langenfelder Inc. v. United binding & which, too, can make find- fact F.2d 600 169 Ct.Cl. ings, g., Relations Labor e. National *12 * * (1965) Having v. United Process Co. and Acme Board [etc.]. States, F.2d 538 171 Ct.Cl. this, inconsistent it would be achieved (1965) support These in of its decision. the law to turn around and unfair distinguishable facts cases are pretend Board and and that In the case before us. and issues from Secretary [Emphasis are the same. deci- a Board the Acme case there was supplied.] Langen- sion, is none here. but there existing circum- in the We think, agency repudiated its decision felder extinguish stances, a Board hearing reopen attempted and controversy by agreeing with case or it, the case which is not order to reverse true the contractor is inconsistent with here. Secretary If, g., independence. e. appear that those cases Should a Board Defense has established any way opinions here- conflict with the fully that binds him as as he could expressed, extent I over- legal to that himself, bind even as to conclu- arbitrary rule them. sions and even in of an ease capricious decision,
or
Board
he has
majority opinion
in at
The
is deficient
* *
created
Frankenstein monster.
(1)
namely,
respects,
least
two vital
Within the four walls of an executive
(the
appeal
There is no
the AEC
establishment,
independence
the real
agency)
from a Board deci-
concerned
suspect
a Board would be
*.
decision,
(2)
sion
and
nor from its own
[Emphasis
supplied.]
from which
There is no Board decision
agency
ap-
or
could
the AEC
other
hand,
On the other
if
peal.
Secretary
has the
to seek review
limitations,
within Wunderlich Act
attempted
Attorney
has
The
safety
there is a
valve and Boards can
equate
AEC’s hear-
the decision of the
call cases as
see them without so
ing examiner
to that of a Board. But
pressure building up.6
much
[Em-
this
-falls
short
the mark.
phasis supplied.]
agency’s
not
examiner and a Board are
are not
the same. Their decisions
majority
opinion
real basis of the
Furthermore,
took
same.
AEC
following
is shown
statement:
controversy
hands of
its
out
From these observed facts it seems
examiner
and rendered
two decisions
clear
that
truly
deci-
These are the
itself
thereafter.
impartial
independent
tribunal
sions involved here.
always
equally reviewable,
Was,
for whomsoever it
[Emphasis
Unauthor-
decides.
The Action
GAO
supplied.]
Scope
Beyond
Its
ized
Authority
reading
A
excerpts
above
majority
opinion
inescapa-
makes it
auditing
an
function
has
GAO
bly plain and clear
that
authority
the deci-
overturn
is without
based on the erroneous belief
contracting officer,
that
in this
or
Board
of a
sion
case
we
have an
agency,
executive
cases
an executive
clause,
from an adverse decision
involving
the standard
overreaching.
These
Board.
independent
or
tribunal
of fraud
absence
appears
Mfg.
just simply
It
the facts.
not
Co. v. United
are
James Graham
See
attempted
(N.D.Cal.S.D.
majority
F.Supp.
has
that
Commissioner,
1950).
not
involved
able Trial
decide a
Our
was
White,
there
found
Mastín G.
here.
independent
sought
our case.
Secretary
is no
Board
and there
No
overreaching
way
perform
case.
out
its
a review func-
no fraud or
tion
was not
Therefore,
handed down
within its
when the GAO
plaintiff’s
in-
either
the terms of the
claims
statute
were
a decision
contract.
AEC
the decision of the
valid and
plaintiff
claims
on such
favorable
says by
now
its amicus
supported
substantial
evi-
curiae
action
brief filed herein that
its
on matters
erroneous
dence
binding
on the
its
reviewing
law,
as a
purported to
act
not,
not,
decision “did
could
affect
self-appointed
court
claims
court —a
rights
the ultimate
substantive
beyond
authority.
—completely
plaintiff”
citing
(Page
15),
Iran
*13
States,
Corp.
National Airlines
v. United
foregoing,
the ac-
to the
addition
(1966)
175 Ct.Cl.
F.2d 640
claims involved
tion of the
on the
GAO
Ry.
and St. Louis B. M.
v. United
&
completely
the case before us
169, 174,
268 U.S.
45 S.Ct.
unauthorized
were
because such claims
(1925).
(cid:127)K The broad executive [*] [*] [*] responsibility [*] [*] therein imply that contained I agree that with the statement agency review of an encom- can obtain administration question passes separate That of adverse Board decision. functions adjudication advocacy. expressly this decided or and not been The tracting any agency through It not involved here. other court. is acts its Board problem impartial it Appeals when of We should decide that Contract disputes. presented proper organs us in a case. arbiter Other agency represent the interests of long-continued practice and in Government before Board agency in admin- custom of an executive advocacy the role of advocate. istering performing and functions and its aspect agency responsi- of the overall interpreting applicable duties and bility determining whether extends great statutes, weight is entitled to agency should seek of an review authority. determining powers and its [Emphasis adverse board decision. Co., See Midwest United States v. Oil supplied.] January Op. Att’y [42 Gen. 309, 472-473, 59 236 U.S. 35 459, S.Ct. (1969) 16 at n. 18.] Tallman, (1915); L.Ed. Udall 380 673 17, 1, 792, GAO audit can check on L.Ed.2d 616 U.S. 85 13 S.Ct. agency Norwegian performance, (1965); Nitrogen the con- Products tracting 315, legal States, 294, and the Co. v. United 288 U.S. officials 1390 government agencies (1933); 350, all L.Ed. officers 796
53
77
S.Ct.
Development
It further
Co. v.
courts
United States.
Power Reactor
provides
396, 408,
function of
decision
S.Ct.
U.S.
Electricians, 367
prose-
(1961);
1529,
whether
what manner
Crawford
6 L.Ed.2d
cute,
defend,
compromise,
or
or
or to
179 Ct.Cl.
v. United
appeal,
denied,
prosecution
or to
or
(1967),
abandon
389 U.S.
F.2d
cert.
any
defense
case referred
to it
L.Ed.2d 831
S.Ct.
by any
handle in
“now exercised
(1968).
applicable
court,
here to
This rule is
agency
officer,
it,
or
is transferred
or lack of
the authority,
determine
Department of
do not think
Justice.”
I
Department
of Justice.
gave
provision
Department
these
It is clear from
statements
authority
review,
nullify,
revise,
or
Attorney
he does
himself
reverse
the administrative
decision of
any
revisory power
not have
review or
agency
another executive
such
that be-
agencies
by other
over
made
us,
fore
nor
its
substitute
juris-
peculiarly
on
their
matters
within
give
Actually,
therefor.
it did not
He cannot substitute his own
dictions.
Department
any
authority
more
in this
opinion for
decision of another
regard
already
than it
It
had.
will be
fact,
especially
questions
agency,
only given
noted that was
the function
law, policy, expediency,
mixed
fact
by any agency
now
exercised
discretion,
propriety,
exigency or execu-
At
time of the Order
officer.
judgment.
tive
cited statutes
above
(1933)
agency
any
had ever exercised
enlarge
powers
authority
did
his
appeal
court from an ad-
regard.
in this
decision of
verse
Board
majority
point
applied
stresses
or from
own
As
its
decision.
Department’s
case,
are
assuming
efforts here
“the
application
our
product
uninfluenced
Justice De-
present
al-
Order as of the
time I have
partment’s
thorough
independ-
own
ready
shown that
of wheth-
[Emphasis sup-
ent
review
agency
the case.”
appeal
er an
can
from an adverse
says
plied.]
It
further
that “the Depart-
decision of
a Board is not
us
before
ment considered the AEC’s decision er-
should not
to whether
be decided. As
unsup-
roneous on matters of law and
agency
appeal
not an
can
own
**
ported by
govern-
substantial evidence
adverse to the
I find no
Depart- ment,
vested in
my
view
cannot do so.
ment of Justice to review the AEC deci-
To allow such an
would be to
sion in
manner different
from a
pro-
sanction an absurd and ridiculous
lawyer
other
ceeding.
his client’s
place,
In the
is no
first
there
case to
necessity
familiarize
himself
with the
for it.
If the
thinks the
preparation
issues involved
government
court
it has
com-
win,
*17
Although
by
trial.
plete
making
cited
the
power
At-
decision
the
at
torney
apparently
agency
not relied
General,
appeal
level. Such an
would be
him,
by
on
appeal by
word should be said about
as ludicrous as an
this court
Supreme
asking
Executive Order No. 6166 of June
to the
Court
that one
by
issued
the President
as au-
of our decisions be reversed.
I can-
by Congress pertaining
imagine
to the
thorized
agency
an executive
reorganization
agencies,
in
of executive
putting
United States
in
itself
such a
given
position.
agency
to the
powers were
foolish
Since the
is
which broad
engage
in
power
cases
Department
ap-
handle
without
to
to
in such
Justice
an
agencies.7
governmental
peal,
Department
Sec-
the
court for
Justice is like-
provides
in effect
the order
tion 5 of
wise without
do
to
so
the
represent all
Department
shall
very
that such
terms of the Executive Order.
reproduced
is
following
Order No. 6166
Executive
also
in Title
U.S.C.
omit-
U.S.C.A.,
132, pp.
Title
(1964
§
footnote of
ed.).
§
ted
157-161
Day in
the Parties
A
Court
Furthermore,
Department
the
for
making au-
given no decision
is
Justice
effect, urges
Attorney General, in
is
until
in a case
thority
the Order
parties
to their
that the
here are entitled
Obviously
Department.
to
referred
the
“day
issue and
court” on the
in
the
until
made
not be
will
referral
such
blush,
ap
is
At first
the merits.
Con-
already
in Court.
filed
is
case
justice
pealing
sense
to the American
appeal” refer
“or to
sequently, the words
However,
ap
play.
it is
and fair
when
decision,and
appeal
the court
plied
procedures in this
to the facts
not to an administrative
appeal.
it loses its
case,
at
Board
agency
of a
a decision
nor to
hearing
All he
not want a
does
court.
short,
Order
agency
level.
is
the decision
wants
the enforcement of
Attorney
at-
simply
General
made
inter-departmental
and to be relieved of
agencies
torney
and officers
for all
squabbling
powers
over
and duties. The
in
government
court
in cases
suit,
AEC,
only
party
other
gave
powers to handle
him the same
questions
had the
involved
the case
attorneys
other
court cases that
already by
heard
times
those au
four
representing
similar circumstances
them,
thorized
to hear
the contract
empower
did not
clients. The Order
their
namely,
officer,
modify
revise,
Attorney
General
itself,
examiner and twice
the AEC
agency
as he
or overturn an
government.
represented
all of whom
attempting
is further
do
This
here.
The AEC has not asked
a court hear
for
paragraph of
shown
another
Section
ing on whether
is final
or not its decision
as follows:
of the Order
merits, and,
speak
nor on
if it
could
Nothing
shall be
in this
section
oppose
out, would no doubt
it. That
construed
affect the function
only
Attorney General,
leaves the
who is
respect
agency
or officer with
eases
party
appears
not a
and who
in the case
stage
prior
to reference
attorney.
hearing
He wants a
prosecution
Department of
Justice
theory
court
to enable him to assert a
or defense.
client,
contrary to the decision of his
being
procedure
followed
AEC,
argument
unpersuasive.
His
Attorney
here not
affects
General
majority opinion
The effect of the
agency
agency
the function of
level,
sponte
actually
Attorney
At-
allow
nullifies it.
If the
sua
General
torney
is to have
last word
General
from the decision of another
appeals
to have
contract
cases and is
agency
govern-
executive
adverse to the
power
deci-
veto
over
and Board
overturning it,
purpose
ment for the
sions,
might
away
do
with
we
as well
dicta,
and, by
similarly
authorizes him
ágencies
al-
decisions of
and Boards
appeal from an adverse Board decision
together,
appeals direct-
and send all such
purpose.
procedure
for the same
Such
ly
hearings
Attorney
imposes
layer
an additional
of bureau-
appropriate
after
decisions,
tape
cratic red
must
contractors
changes.
overcome before
receive final deci-
Congress
I
not think
ever intended
do
along
trail on
sions
the administrative
upon
Attorney
confer
their claims under
clause
asserting
passed
he is
here when it
government
easily
It
adds
contracts.
action,
His
the Wunderlich Act.
*18
years,
perhaps
from
and
one
three
majority opinion,
approval
has
of the
more,
already
period
to the
extended
process
tied the
whole administrative
processing
for
claim.
time
a contractor’s
tight
very
into a
knot of
contract eases
system,
such a
can a
Under
how
knowl-
tape
may
delay,
red
and
and
take an
edgeable contractor afford to do busi-
Congress
it,
Act
untie
since this
government?
court has not seen
to do so.
ness with the
fit
Quantum and Breach
Contract
court has framed
the issues
them.
The trial
held that
commissioner
will,
in this case
court’s decision
pay
plaintiff
failure of
AEC to
already
swoop,
in one fell
render
carry
period
out its decision for a
con-
troubled business of Government
years
over five
after it
was rendered
tracting
hopelessly
amI
con-
chaotic.
a breach of contract.
also held
He
today’s
wholly
vinced
is
procedure
in-
the administrative
only by
supportable
undesirable
adequate and
under the
unavailable and
legislative
interpretation
strained
Anthony
of United States v.
history.
Sons,
Inc.,
Grace &
U.S.
(1966),
opinion
of the
S.Ct.
1393
intent of
any way
manifest
in
frequently
alter
legislator,
that of
my view,
amounts,
in
legislature
meaning
in
general
used
are
words of
legislative func-
usurpation of the
enough
a clear
statute, words broad
demonstrate,
attempt
yet
As I shall
tion.
question, and
in
act
include
single and
question has but
legislation,
the act
whole
consideration
all
not at
surrounding
purpose
does
limited
circumstances
or of the
in this
support
conclusion
the court’s
enactment,
results
absurd
or of the
its
case.
giving such broad
which follow
words,
meaning
it unrea-
makes
to the
ap-
(which, more
Act
The Wunderlich
legislator
to believe
sonable
might
called the Anti-
propriately,
be
act.
particular
to include
intended
Congress’
Act)
direct
(cid:127)»
Supreme
response
Court’s
*******
object de-
Wunderlich, 342 U.S.
v.
United States
signed
must
the act
reached
to be
(1951).
98,
154,
113
96 L.Ed.
72 S.Ct.
import of
the literal
limit and control
reversing
court,
case,
In that
employed.”
phrases
terms
Supreme
of an
held that a decision
Court
approval
States,
Church
511, 512,
F.2d
United
[*]
143
[*]
36
States,
688-689 (1969),
Inter-City
U.S.
L.Ed. 226
Holy
187 Ct.Cl.
457,
Trinity
459-460,
(1896),
Truck
290, 295,
Select
Lines,
cited with
v. United
12 S.Ct.
Tire
Ltd.
408
board
thority)
alleged
could not be overturned
72 S.Ct.
review “unless it
head
at 156. The
which he
proved.”
(or
the contract
“disputes”
has
devastating
founded on
342
delegated
U.S. at
on
clause1
appeals
fraud,
effect
100,
au-
was well
Salvage
the Wunderlich decision
181 Ct.Cl.
United
Co. v.
Douglas
(1967).
when he
695, 703,
described
Justice
F.2d
said,
dissent,
recently,
Supreme
makes
“[i]t
Court
More
contracting
tyrant
every
officer.”
out of
said that:
72 S.Ct.
156.
U.S.
* * *
aid to construction
When
words,
meaning
used in the
Douglas
perceived
Justice
The evil
certainly
statute,
there
available,
escape
other dissenters did
“rule
forbids
can be no
of law” which
attention,
congressional
and several bills
may
use,
the words
however clear
houses,
introduced,
in both
were
appear
“superficial
examination.”
remedy
held its
Each house
evil.
general con-
A
words
hearings
few
The Senate
own
on the matter.
appearing
text
notation
testimony
quoted
hearings,
from which
given
statutes
a wide
in 1952. Wit-
the court were held
meaning, contrary
policy,
to a settled
hearings,
representing
nesses at
these
“excepting
purpose
as a
industry,
different
were
both Government
plainly
omitted,
shown.”
[Footnotes
degree
understandably
alarmed
emphasis
supplied.]
Supreme Court’s
which the
had accorded
Trucking
United States v. American
“disputes”
decisions under the
clause.
Ass’ns,
534, 543-544,
U.S.
S.Ct.
(1940).
if the boards established Govern- err, purpose err in
ment for this As Justice favor of the Government. Wunderlich, dissenting said, Jackson CCPA *25 JACQUES CORP., Appellant, are more often bribed their “[m]en ISLER by money.” loyalties than and ambitions v. 342 S.Ct. 157. Second- U.S. Appellee. STATES, ly, The UNITED still for fraud or over- review board decisions Appeal Customs No. 5389. reaching. United States Court Customs Langenfelder The statements in C. J. Appeals. and Patent States,
& Son United
Ct.Cl.
(1965),
25, 1970.
F.2d 538 position, of its
relies substantiation they are inconsistent with
to the extent expressed herein, should be
the views
recognized and over- unwisdom for their
ruled. hold that conclusion, I would In not, never does Act Congress to, fed- invest the intended Co., procedures, Mfg. Federal Pro- as found
10. See
Marietta
States v.
United
Regulations
contract,
(S.D.W.Va.1967).
F.Supp.
curement
and in the
contract,
a breach of the
Gov-
held that
the court
that case
follow the
failure to
ernment’s
notes
ment.]
later deleted
by preenactment amend-
those elusive abominations known
case, however,
law,
but also
questions
involves
questions
fact and
questions
mixed
of law
fact.
language
quoted above
to that
Identical
Report No.
can be found
Senate
perceive this to
distinc-
do not
be a
We
Report
supra. Although
(H.R.
the House
enough
different
to cause
tion substantial
Cong.,
Rep.No.1380,
2nd Sess.
83d
history
the Act nor its
results. Neither
language,
(1954)) did not include similar
foreclosing the
sustain
Government
will
it did make this statement:
judicial
Di-
review on this basis.
from
sections,
precludes
Act
the
hearings
vided into two
been
After extensive
any admin-
the attachment
in-
concluded that it is neither to
rendered on
istrative decision
terests of the
nor to
Government
fraud, ca-
as a result
any
industry groups
or issued
law
interests of
grossly er-
price
or so
engaged
or arbitrariness
performance
are
faith,
sup-
imply
or not
roneous as to
bad
repose in
Gov-
contracts
evidence.
ported
substantial
ernment officials such unbridled
permits
to relieve
us
finally determining
equity
same
which
disputed
either
claims,
legally
disputes
parties
deci-
erroneous
Window
factual
clearly
where
relevant
to issues
also dictates our intervention
resolved were
sions
fraught
it,
parties
properly
and both
factual determinations
are
before
opportunity
ar-
above deficiencies.
had a full and fair
gue
and an
their version of the facts
Supreme
Court’s United
States
opportunity
to seek court
Co.,
U.S.
86 S.Ct.
Utah Constr.
(Em-
findings.
*.
adverse
(1966), anticipates
1545,