*1 AND MINING CONSTRUCTION UTAH COMPANY STATES. UNITED 3-61.
No. Claims. Court oí States
United 11, 1964.
Dec.
Rehearing Denied March
Davis, J., part. dissented
6Q7 delays the defendant on account of other causes. The case was referred Trial Com- *3 Murray
missioner C. taking Bernhardt for the testimony report. and for a February 18, 1964, On the commissioner defining issued an scope order testimony to be taken with reference to claims, light the several Supreme Court’s in United States Co., v. Carlo 709, Bianchi & 373 U.S. 83 1409, (1963).10 L.Ed.2d 652 defendant now asks us to review this order. Prior to Wunderlich, United States v. 342 U.S. 72 S.Ct. (1951), this court had held that in de-
termining whether or not the action of
officer or the head of
department
arbitrary
capri-
was
or
unsupported by
cious or
substantial evi-
dence
contrary
or
law,
otherwise
was not confined to the evidence before
Johnson,
Gardiner
Francisco, Cal.,
San
the Board
Appeals (which
of Contract
plaintiff.
Stanton, Jr.,
Thomas E.
representative
most cases was the
n Francisco, Cal.,
San
Hey-
and Charles J.
department),
head of the
but was
ler, of counsel.
entitled to receive evidence de novo.
Irving Jaffe, Washington,
C.,
However,
Supreme
D.
Court in United
Atty.
whom was Asst.
Wunderlich, supra,
Gen. John W. States v.
held that
Douglas,
for defendant.
James F. we
bound
were
the action of the con-
Merow, Washington,
C.,
tracting
arising
D.
was on the
officer on claims
briefs.
the contract unless his action was fraud-
ulent;
say,
that is to
unless
amounted
COWEN,
Judge,
Before
Chief
wrongdoing. Following
to conscious
DURFEE,
Judg-
DAVIS,
COLLINS,
decision,
Congress
what
enacted
es,
WHITAKER,
Judge.
Senior
Act, being
known as the Wunderlich
May 11, 1954,
Act of
68 Stat.
This
Judge.
WHITAKER, Senior
provided
act in substance
that the deci-
department
sion of
of a
the head
or his
Atom
Plaintiff had a contract with the
duly
representative
authorized
or board
Energy
construc
for the
ic
Commission
dispute involving question arising
“in a
assembly and maintenance
tion of an
*
**
under such contract
shall be
Testing
National
area at
Reactor
final and conclusive unless the same is
Counties,
Station
Jefferson and Butte
capricious
arbitrary
or
fraudulent
or
fully performed
Idaho. The contract was
grossly
necessarily
so
erroneous as
im-
January 7, 1955,
(cid:127)on
several extensions
ply
faith,
supported
bad
or is not
granted
having
(cid:127)of
on account
time
substantial evidence.”
delays
was
for which the contractor
During
responsible.
performance
Following
of this stat-
the enactment
Wagner
completion,
ute,
of the contract and after its
this court
first held
Corp.
claims for increas
made various
and Derrick
v. United
Whirler
damages,
F.Supp. 664,
ed costs and for
of which
Ct.Cl. 382
some
(1954),
were claims
that Wunderlich Act was
signed
alleged
quo
-and
status
some
breaches of contract
to restore the
ante
procedural
Supreme
in United
stantive or
defect or in-
Court
adequacy,
judgment
Wunderlich, supra,
did
the sanction
but we
States
always
or not
the contractor would
in that case whether
not decide
available to
709,
to deter-
the court.”
[373
admissible
de novo evidencewas
717-718,
of the board
1415.]
the action
mine whether
However,
arbitrary,
in Volen-
etc.
Where
“arises un
States, 145
and Littleton v. United
tine
der the contract” the
(1956),
F.Supp. 952, 136
Ct.Cl.
department
the head
have au
explicitly
purpose of
held
since
thority
questions
to decide
of fact and
quo
Congress
status
was to restore the
*4
the contract makes their decision thereon
practice prior
ante
to
and since the
the
conclusive;
final and
but where the dis
had been to
Wunderlich decision
receive pute
alleged
involves
breach of the
novo,
de
would
to
evidence
continue
contract, and the contractor
un
seeks
position
do so.
in
We reiterated this
liquidated damages therefor, neither the
States,
Carlo Bianchi & Co. v. United
contracting officer nor
the head
the
514,
F.Supp.
(1959),
169
gll judicial to a tribunal and de- contractor thinks has submitted he been de- layed only days, than X it. more but his re- cided appeal course is an department the head contracting nor But officer neither the final whose decision is be- department, rep- or his the head resentative, dispute cause this is a judicial is a tribunal created In contract. of action which absence Congress; they ofAct derive their arbitrary, etc., this is the end authority solely from be- matter, so far as costs and increased authority parties, tween the their concerned, extension of time are for all limited the terms findings of fact of the That contract to make authorizes them department and head of the in such dis- findings disputes “arising and to decide putes final and are conclusive. only under the contract.” It is as to disputes findings such their But contractor still thinks he has decisions made final and are conclusive. delayed days than X more he It does not make them final and conclu- further thinks was so unrea- dispute sive on a over whether there has sonable as to amount to a of con- breach been a breach of the contract. tract, damages so he sues for for the findings party In breach. such an When a submits his case action the judicial tribunal, light of fact of final, not to a he does so officer are findings of fact because this is not a “aris- of the binding that its rule litiga only him, in that the contract.” It is as to disputes litigation tion, those in all the contract other between does parties. make his final. In the same apply But this a suit for a rule does delay, requires breach because a contract him to unreasonable where *6 court, claim, judicial the in order to submit his determine whether not to a tri delay bunal, designated and, hence, person the but to a unreasonable the contract, a contract; ject only breach in the must such so determine ease he does sub delay. the extent to In such a dis- the terms of and pute agree findings did not that the the effect and designated contracting person decisions of the officershould is that set out be final and the contract and no conclusive. more. So, party appeals to when In case would so construe the judicial whether tribunal to determine parties, contract but in this between party con has breached the the other tract, compelling case strictly is a there to reason by a of a it is not bound precise limit to its only person disputes to authorized decide anyone terms. It is well known that “arising contract,” and it is seeking a contract with the Government judicial to entitled to ask the tribunal willing agree accept the to must be findings its and make own render its de Government; in- contract drawn deed, findings. cision based those Since stip- for so the advertisement bids this is the first that time recourse has contracts all contain this ulates. These judicial tribunal, been had to a that tri clause, “disputes” ar- which makes the only may, obligated, bunal not is but it dispute in the first instance biter of the findings. its own make Never before contracting officer,who is the Govern- day has the contractor “had his in court.” employee, and and whose ment’s servant prime duty diligent pro- example: contracting For is to The officer change tection of the Government’sinterests makes contract and strictly require contractor for the contractor asks the increase his change comply of the contract. cost as a with the terms result and for an to that The from such a for incident transition role extension time impartial contracting of an arbiter in the settlement allows thereto. The officer himself, rep- dispute of a or his him between a sum increase cost and resentative, delayed days. contractor would determines has X he drilling appeal in the An Plaintiff claims difficult. somewhat seem be “piers,” findings or founda- excavation and decision from the buildings, contracting tion shafts for certain it en- to the head is allowed officer differing he, too, conditions department, countered subsurface materially but opposite Government, indicated in the those officer of the contracting party. First, ad- contract documents. it claimed an additional This is compensation limiting cogent ditional cost the extra this and a reason for drilling precise had provision the “float rock” which it of the contract to its Langevin States, encountered and which it was not claimed See v. United terms. Trading shown the contract documents. This supra; Con- Beuttas as B-W contracting States, supra; claim was offi- denied United struction Co. v. ground changed supra. Miller, cer on the that no con- United Inc. ditions had The Ad- been encountered. Energy Ad- Commission’s The Atomic visory Appeals, Board of Contract visory Appeals in Board of Contract representative of Atomic the head Company Appeal of Utah Construction Energy Commission, and found reversed (Docket recognized 91) lack of No. chang- that the float rock did constitute jurisdiction or to make decide ed condition but that no additional cost concerning damages for breach of con- thereby by “plaintiff had been incurred said; tract. It unless it was drill- liable therefor to its clear, light “It ing subcontractor. The claim was re- Appeal Board’s decision in of Clare- manded to officer Company (Dock- mont Construction termine amount of cost the increased 64), that, et No. does the drilling. appeal Contractor’s on the issue Certain letters have been filed with the damages solely law, issues raise plaintiff commissioner indicate is as to a prosecute did not further its claim for ‘relating matter to’ and not one and, hence, increased cost neither ‘arising under’ the contract. The nor the board allowed Board has discussed this distinction plaintiff any sum therefor. length at in both that Claremont Appeal case and in Drill- Frontier holds commissioner ing Company 74). (Docket No. *7 is not to in entitled recover this court reasoning repeated not need be here. therefor reason of to exhaust failure issue, appeal As to this should remedy. its administrative The commis juris- be dismissed as not within the affirming sioner was correct the action diction of Board.” of the board since this was “arising dispute under the contract.” conclusion, In hold in a we suit for breach of contract not we are damages claims also Plaintiff finding bound of fact of the Board delay by of the refusal of the for contracting reason Appeals though of Contract even modify contract to officer is relevant to “a changed conditions en on account under the contract.” for action this is Since countered. contract, breach mind, general principles in With these the board bound may proceed the commission- we to consider novo concern de introduce evidence respect er’s order with to the several may delay ing unreasonable them claims. The commissioner divides thereby. occasioned have been categories, respect (1) with into six these ag- drilling, pier (2) Rice, the concrete 317 v. In United States windows, gregate, (3) (4) (1942), the shield 120, L.Ed. 53 87 63 and, door, paint, (5) shield the Amercoat that, was a contract where it was held delay finally, damages changed claim. condi on account modified encountered, was en- the contractor Drilling tions 1. Pier Claim.
GIS appealed and an Plaintiff titled to increased costs extension to the head damages department. Advisory time, to but not to incident Board delay. However, Appeals Contract dismissed where the contract the claim timely delays unreasonably plaintiff for modi failure of to officer make fying presentation contract, of it. the contractor en damages titled to recover such claim one be breach as was F. H. unreasonable. contract, suppos of es, as our commissioner & McGraw F.Supp. Co. United jurisdiction to have it determine (1955), Ct.Cl. and to receive de evidence novo. and cases cited. Here the contract was However, assuming claim is completion not modified until after not for breach we cannot the work. agree with the commissioner that failure of the board to consider the ease apparent It is not how this could gives plaintiff right on its merits delayed plaintiff plaintiff have because introduce evidence de novo this court. changed has failed to show that the con If we decide the board should con costs, have ditions increased its but if it was merits, sidered the claim on unreasonably delayed, we should plaintiff is enti suggest to the board that it it consider tled to recover for breach suspend proceedings on the merits and Aggregate 2. Concrete Claim. here until oppor it has had a reasonable contracting The contract allowed the tunity to do so. purchase aggregate officer to concrete 3. Shield Windows Claim. supplies and the the Government’s Early original perform- contractor did so. Under the contract defendant ance undertook to furnish was discovered shield windows building that quired strength to be con- did the re- installed the concrete dirty structed, con- but modifications 2 and and that the thereof, plaintiff required nego- aggregate responsible dition of the was was necessary Corning supply To tiate contract with Glass therefor. strength, procurement required for the Works these windows, shield add one which it did.1 win- sack cement each supposed yard comply during dows con- cubic mix were concrete specifications shop washing tract drawings and with time the Government samples. bring specifi- up as to Plaintiff com- concrete so plains unreasonably requirements. that defendant cation Plaintiff submit- layed drawings. approving shop ted to officer a claim says authority designated also It that the the extra cement used and was reim- approved type first bursed II windows therefor. agents that other *8 of the defendant later year a More than after the contract rejected and them still later the defend- completed,plaintiff had filed claim rejection again ap- ant reversed its and for additional costs incurred because of proved alleges delay It them. also in poor aggregate. the contracting condition of the The approval type connection with of I the of officer was the windows. plaintiff that this additional of claim the and, plaintiff presented was fore, for one breach of contract on there- its claim The authority which had no to one he for this item for a time extension excusa- “disputes” delay equitable adjustment decide under the for terms the and ble thought Changed article. He also the claim was increased costs under the Con- untimely. ditions com- article the contract. The designed jecting 1. These shield were windows to observer to radia the radio-active permit going observation what was tion. within the atomic sub reactor without by answer, not rebutted he is that cannot deter- ant’s which states missioner plaintiff, part it the Government released the record what mine from arising under, in con- what “from all claims contract and claim the arises subject by delay; damages for with or virtue the part for nection is of it is and all modifications thereto that basic issue he concludes exception of shield window plaintiff unrea- with the was or not the whether drilling claim, pier claim, by delayed sonably the Govern- acts aggre- claim, says properly door the concrete shield gate ment. to such claim he As $5,606.39 claim, sum of de- and_ head of the that the decision pending a decision was withheld partment which not final and de novo evi- is pre- appeal.” claim may the Amercoat court. be introduced this dence contracting re- with sented officer that contention Defendant’s spect door did not advance to the shield delay filing for with Changed of the claim any for claim costs on account increased contracting officer under signed delays. by plain- release forecloses Conditions article tiff reads as set out the Government’s damages bringing for de from for suit answer, it said that the Gov- must be lay The contract cannot be sustained. thereby all was from ernment released only grant an could extension officer specifically excepted, claims whether delay Rice, (United of time for States v. arising under contract or in breach damages supra); award could not he United States v. William delay. for unreasonable Engine Bldg. Co., Cramp Ship & Sons & appears the board over It that (1907) ; days testimony Watts v. Unit- period Construction Co. with of 3 heard 351-61, May including ed Ct.Cl. No. respect claim, decided claim this exception of delays, transcript 1963. The “the shield for and that door testimony pages, claim” must have referred to the this to 453 runs presented contracting filed; claim many hence, to the officer. exhibits were stated, As did suggests parties claim not refer commissioner damages delay. Hence, for might agree record, commis- on this well stand saying sioner correct evi- permission supplement with with damages respect dence reference claim to such extent lay on account Certainly of the shield is in- they proper. par door as think admissible, ought duplicating foreclosed re- because ties to desist from but, lease. insofar as administrative record damages the claim relates to for unrea As to the claim made delay, are not fore sonable changes extra work made account supplementing it, nor closed drawings, shop “aris claim they if wish. ing under within the contract” Door Claim. Shield authority contracting officer n presented This claim was determine. The Changes article of contract under disallowed it was the claim because extra the contractor asked for presented days required within 10 as change costs draw- reason of3 the contract. The board Article ings specifications. plaintiff’s that a held claim *9 officer disallowed claim it the because extra costs must be disallowed because presented days was not within 10 as re- changes it not did constitute under the quired by Article 3 of the contract. Changes part article, as and to that changes which did board constitute the work, completion of After the by of held that it the failure was barred payment final to the contractor made present to its claim within the signed by and a release was it from which 10-day decisions, period. both the These claims, including excepted certain According officer and shield door claim. to defend- province. board, important urged upon within all of their the were issues allegation arbitrary by parties. understand, of and us As There is no the I the major and, capricious hence, issue, separates no which action the views jurisdiction majority Judge of of the Davis, from action the to review the those of therefore, is, is the to board. It immaterial extent which a purposes agency the made of this motion that rec- board on a claim for granted proceedings. ord relief that can was made board’s be binding terms the contract will be in 5. Paint The Amercoat Claim. subsequent court action for relief of signed by plaintiff, In the release the type the which not available the according answer, to the defendant’s contract, terms of the when the same “excepted $5,606.- therefrom the sum question again presented. factual I pending 39 which was withheld decision my would reserve the until facts appeal.” in the Amercoat This sum was questions adequately pre- of law are subsequently plaintiff and, paid there- stage pro- sented to the court at a fore, defendant has been relieved ceedings properly it can where decide liability respect all with to this Amercoat the matter. paint claim. I would also decision as to reserve the February commissioner’sorder scope Suspension effect 18, 1964, accordingly. is amended in Work clause that was included partial motion Defendant’s sum- Apparently contract in this case. both mary judgment may filed, be Advisory the contractor and the AEC same is overruled with to renew leave as Appeals Board on Contract considered any to matters contained therein application that this has no clause upon opinion. ruled in this presented by of the claims contractor. However, argues defendant that the Sus- pension of Work clause authorizes the Judge COWEN, (concurring in Chief pay costs in- result). curred the contractor as a result of Judge majority and I concur with the delays. Government A decision as to the rejecting the Government’s Davis sweeping application might of that clause have an novo evi- contention that de important bearing questions on other respect inappropriate dence is any with However, be decided this case. as with the factual connected Judge pointed out, Davis has this case regardless nature present pres- does not in its issue authority claim or the contractor’s posture. ent agency the de- board head partment to which foregoing decide the preliminary With the state- questions For such factual related. ment, are I concur in result reached opinions, the reasons in both majority stated the six claims covered position, Disputes fendant’s trial commissioner’s order. requires agen- clause the administrative cy binding DAVIS, Judge (concurring make factual determina- every question relating dissenting part). tions contract, is untenable. reject- concur the court in I with emphasized It should broad contention that we have Government’s Disputes us before of a commis- clause demands review Considering stage sioner’s all order. factual connected with matters the trial at which was is- order contract—whatever nature sued, only by us, nature the record before claim—be tried and determined parties, agency (or representative), I the briefs do board pos- finality attaching present believe that this ad- case to all those presents proper lay- ture ing vehicle factual ministrative adequately supported.
down hard and fast That never rules resolve has
616
give
long history
no
during
board can
relief
trative
the law
been
finally
contrary,
and therefore cannot
Disputes
On the
clauses.
recog-
decide the facts.
finality
been
has
of such
consider-
the board
accepted
nized
when
be
This was
distinction
request
some
1954,
a contractor’s
68 Stat.
the Wunderlich Act
fore
Changes,
(like
provision
81,
is cer
41
There
U.S.C.
321-322.1
§§
Changed Conditions,
ground
Termination
tainly
saying
that that en
Suspen-
Convenience, or
changed
segment
Default or
this
Gov
actment
expressly
articles)
author-
sion Work
rules
ernment contract
law. The same
adjustment
izing
agency
grant
since
have continued to be followed
specific
price
passage
statute,
relief
defined
or other
ad
of that
both
disputed
agencies
court,
are
alone
circumstances. These
ministrative
“arising
questions
the contract.
tacitly.2
under”
explicitly court’s
As the
opinion
out,
present
points
Exhaustion of the administrative
rem-
case
finality
edy
required and
Supreme
has not been
in United
Court’s
Co.,
has
accorded where
facts
Carlo Bianchi &
U.S.
States v.
373
claim,
type
709,
1409,
for a
relate to a
such as
652
10 L.Ed.2d
breach,
remotely
(1963),
suggest
does not com-
the contract
did not
agency
long-established
wrong
tomit
determination.
Those dis-
these
rules were
putes
with,
changed.
connected
but do
should be
That
under,
solely
arise
The adminis-
dealt
matter conceded
Bridge
States,
States,
F.
See Phoenix
v. United
Kiewit Sons’ Co. v. United
151
Co.
603,
(1937);
Supp. 726,
(1957); Vo
Plato v.
85
629-630
617 remaining questions, Disputes as to all factual scope er of the be within the case, not been court which have clause.3 by agency finally tribu- determined thirty history of almost With particular nal; facts which those try interpret years, too it is far late actually found, and which sur- anew, ques- Disputes if the as clause Act, scrutiny vive under Wunderlich emerged The first time. tion had practice And, course, of a would be conclusive. puffed firmly to be is too rooted gratuitously board could not exceed its by grammatical and refinements aside wandering by finding off and mandate language” hortatory appeals “plain to the part of, facts which not a true and administrative, judicial, canon. The integral to, its determination under practical is too of the clause construction being applied. substantive contract clause strongest any entrenched for but the presented assaults. We have been position, court’s, This rather than the making overwhelming reason for no such by required the terms to me seems Disputes change in con- this drastic Government clause, phrasing tract law at this time. underlying Act, principle Wunderlich disagree, however, decision, policy of ma- 2. I with the and the the Bianchi jority’s holding well-supported estoppel.4 fac- an issue Once collateral controversy by findings, appropriately tual under the arises in a made fact by agency, deciding “arising board in un- a and is decided contract binding contract,” Disputes clause makes der the in a are not the text decision, supported, final and con- court trial of a if of action which is cause simply Disputes g., final (e. outside clusive clause —not breach, etc.). special purpose, reformation, for a and conclusive the board qualification relevantly appropriately final without has and conclusive decided too, statute, a and without limitation. certain factual issue connection with conclusiveness, Changes Changed a is framed in terms of the claim under or any restriction, supportable article, etc., without Conditions and if that find- by “in a dis- adequately by factual decision the board ad- sustained involving arising pute question record, my view is that then ministrative wording finding such contract.” both accept the court should the (or deciding contract clause seem the Act claim other claim the breach findings prop- grant finality “arising contract”). factual to all erly course made the board should no novo There de evidence resolving disputed question particular no de novo fac- on that merely find- to the board’s course, contract—not tual court issue. Of evidence ings disputed fact which issues of entirely prop- and court would be duly agency any department or bis bar, or at the defendant does 3. In the ease representative in a rely or board support authorized dispute broad on Bianchi question involving un- Supplemen- position. The Government’s pleaded tary (p. 10) says, shall be such der after Memorandum any as limit- filed or to be filed quoting suit now Bianchi a sentence from the any ing judicial such decision review opinion, at or scope such official fraud “Thus, to cases where not decide the Bianchi does representative al- agreement or board is disputes his said the standard any leged: Provided, however, beyond recog- That such contracts, Government un- and conclusive argument be final decision shall was addressed nition that capricious or question.” fraudulent less the same is to this grossly arbitrary as erroneous or so or this court I of no decision of know faith, imply necessarily or is not bad prob- to this exact has addressed itself supported evidence.” substantial lem. provides: “No Govern- § 41 U.S.O. provision provision contain a shall provides: ment contract “No § 5. 41 U.S.O. making law the final on any into the Unit- entered official, any finality administrative relating decision of con- ed representative, or board.” head clusiveness *12 necessarily 1955). 4, only arise under majority themselves reasons the judicial now offers for a re-trial of fac- questions already tual determined val- the ba- articulates The Bianchi findings id policy board are the same con- fully accepting sic for Act rationale Congress siderations which Su- they written— and the as clause preme already Court have discarded duplication of of “a avoidance evidentiary hearings needless the Wunderlich Act opin- and the Bianchi heavy addi- ion. expense burden time and tional re- respect trial, my’ With to a de bring litigation novo quired to to an end” disposition separate of the six (373 717, 1415). claims U.S. at at This 83 S.Ct. with which we have to deal would as major be underpinning of Bianchi deci- follows: supports finality, sion likewise court, validly of all facts found Drilling a. Pier Claim: The as- board course of a determination pect us, of this claim now before on the under the contract. There no is need request Government’s review the hearing already on an second issue order, ruling Commissioner’s is the that tried and resolved. plaintiff can introduce de novo evidence delayed the issue of whether was general policy This is the which same (and thereby into the winter suffered nourishes the doctrine of collateral es- damage) pouring toppel. concrete. reluctant, however, The court is alleged delay This pouring concrete apply principle to these adminis- part of an claim administrative trative because of the nature relief, was entitled to under Ar- genesis of the boards. The Wunder- (Changed Conditions), ticle 4 for the Act, applied Bianchi, lich dispel as should difficultiesmet after it encountered “float Supreme these doubts. The Court Advisory rock.” The Board could not plain Congress made intended the grant monetary compensation for this (and repre- boards like administrative delay (United Rice, States v. 317 U.S. sentatives) to be fact-finders within 61, (1942)), competence, just their contract area of express but under the words of Article as Commission, the Interstate Commerce 4 the Board could allow an extension Commission, and the Trade the Federal performance. of time for refusing In Board are National Labor Relations give relief, specifically the Board purposes. In the for other fact-finders delay found that the due to the “float light statu- of Bianchi’s evaluation operate rock” did the build- give squint tory policy, should not ing (i. e., pouring construction reading a ity board’s author- crabbed concrete). Since this issue was then stayed sphere, it has within its where properly proceed- before the Board in the accept primary fact- but should finding it as the under Article of fact factual tribunal whose determina- accepted (in my must be view) if ade- contract) (in disputes tions quately supported. There should be no received, valid, in the must be way if same de novo trial of this issue. other courts or as those agencies. agree independent Aggregate administrative I b. Concrete Claim: view, the more modern the find- Under court on this case. ings latter, acting Hearing at least when Examiner reached never adjudicatory capacity, in an are consid- merits claim and therefore final, directly nothing (on merits) ered in a suit not even re- decided proceeding, binding present lated to the would administrative be If here. good correctly is unless there some reason for a demand can be deemed one inquiryTnto^ffie^Sfé contract, new facts. breach of should there Judicial Davis, properly See full Administrative Law 566 trial. if But the demand (1951); Fairmont Aluminum Co. comes under Commis- Commissioner, (C.A. sioner F.2d should decide whether or ground that ruling tion of this claim 'Hearing time- on the Examiner’s arbitrary allegation or ca upheld. If is there pricious appeal to be liness a formal defect not, This is pro- action. so, an end. at claim *13 by easily amendment. which can be cured suspended to ceedings here should amend, plaintiff I let the would If does so Energy Commission Atomic allow the ade whether he can Commissioner decide quately opportunity to determine reasonable findings court, Board’s I review the Like the of the claim. merits testimony, g., on absence the oral e. the character no view as intimate documentary papers the basis (breach of contract vs. claim If evidence. insufficient, such a review would be contract). suspend proceedings I would Plaintiff Claim: Window Shield c. give Energy the Atomic Commission compensation and an exten- sought both by chance to correct the record recon (Changed Article of time sion structing previous hearing by just with as Conditions) for this item— holding (see a new one United States Basing Drilling de- its Claim. Pier Co., supra, Carlo Bianchi & at 373 U.S. (Delays— and 9 on Articles 4 cision Damages), 717-718, 1409).7 Bianchi, as I Advisory Board, after it, precludes any judicial de novo read very findings hearing, on the full made solely trial where claim under the com- plaintiff now seeks for which contract and there been have administra findings rightly pensation. were Those tive on the merits. part wheth- Board’s determination of the agree e. Amercoat Paint Claim: I grant of time—(cid:127) an extension er or not with the court. To the extent not re- by expressly Articles authorized relief leased,8 this paid. claim has been above, find- these As indicated and 9. ings, Delay-Damages f. sanctioned Claim: The Com- to the extent that, missioner record, held release,9 held should be aside from the mat- administrative plaintiff’s ter binding court, general novo this and de evi- on delay damages claim for (directed is- same factual tracked the at the dence sues) separate individual claims fac- other should fol- If there are disallowed. disposition. agree low their I Board’s not covered tual issues supportable (as presumably conclusion although does, findings, novo court de evidence does not permitted. mention should be phase case). general this lay damages agree with Claim: I d. Door Shield appears claim no have plaintiff its that is barred court independent status its own but is a damages seeking delay from now release recapitulation separate demands. claim ad demand.6*The made on this 4. types There are two of Bianchi- ministratively plainly one related issues which this case does not Changes 3) (Article article and therefore present posture: in its (a) current competence. I do not within the Board’s extent to which an disposi administrative deter- concur, however, with the court’s preserving position phase Technically, 6. the release the case. now re- is not before us defendant’s quest for review since the Commissioner participate refuses to in such point in favor of defendant. decided that proceedings, renewed administrative in- did not review. In the Plaintiff seek should be held to have abandoned orderly speedy disposition terests Energy claim. If the Atomic Commission litigation, however, better seems refuses, judgment “the sanction of now, dispose of rather than the issue (373 the contractor” is available at the case before on the when comes us 1415). 83 S.Ct. at partial or on motion for sum- merits mary 6, supra. 8. See footnote judgment. failing appeal By ruling, plaintiff the Commissioner’s 9. The defense of release is raised accepted summary partial least can be deemed to have at defendant’s motion for judgment appears of his decision. There to cover more suggestion plaintiff is than the six briefs claims now us. before questions directly re mination of factual (rather interpretation than lated to the provi application) of the contract binding court;10 (b) the sions is contractor, proper procedure where the having pursued
without administrative remedies under sues for a breach, while the defendant contends could claim and should
framed as a demand administrative *14 specific relief some clause of the Bianchi,
contract. Since the court has questions (and not decided these does now), my do so and I continue to reserve position until issues must be faced. Enterprises, Cf. WPC Inc. v. United States, Ct.Cl., 874, 878, 323 F.2d decided Oct. 1963. COMPANY,
BOYD CONSTRUCTION Inc.
The UNITED STATES.
No. 454-59.
United States Court of Claims.
Dec. 1964. aspect is one Act. This “fact vs. law” the so-called Wunderlich