Pope v. United States

• Decision Date: 06 November 1944
• Docket Number: No. 26,26
• Citation: 89 L.Ed. 3,323 U.S. 1,65 S.Ct. 16
• Parties: POPE v. UNITED STATES
• Court: U.S. Supreme Court

323 U.S. 1

65 S.Ct. 16

89 L.Ed. 3

POPE

v UNITED STATES.

No. 26.

Argued Oct. 16, 1944.

Decided Nov. 6, 1944.

Mr. George R. Shields, of Washington, D.C., for petitioner.

[Argument of Counsel from page 2 intentionally omitted] Mr. Francis M. Shea, Asst. Atty. Gen., for respondent.

Mr. Chief Justice STONE delivered the opinion of the Court.

The question for decision is whether Congress exceeded its constitutional authority in enacting the Special Act of February 27, 1942, 56 Stat. 1122,¹ by which, 'not- withstanding any prior determination' or 'any statute of limitations', it purported to confer jurisdiction on the Court of Claims to 'hear (and) determine', and directed it to 'render judgment' upon, certain claims of petitioner against the Government in conformity to directions given in the Act.

Petitioner brought the present proceeding in the Court of Claims to recover upon his claims as specified and sanctioned by the Special Act. The court dismissed the proceeding on the ground that the Act was unconstitutional. 53 F.Supp. 570, 100 Ct.Cl. 375. It thought that in requiring the court to make a mathematical calculation of the amount of petitioner's claims upon the basis of data enumerated in the Act and to give judgment for the amount so ascertained, notwithstanding the rejection of those claims in an earlier suit in the Court of Claims, the Act was an unconstitutional encroachment by Congress upon the judicial function of the court. Holding that it was free to ignore the congressional command because given without constitutional authority, the court gave judgment dismissing the proceeding.

The case comes here on petition for certiorari which assigns as error the ruling below that the Congressional mandate was without constitutional authority. Because of the importance of the questions involved we issued the writ, 321 U.S. 761, 64 S.Ct. 846. For reasons which will presently appear, we hold that we have jurisdiction to review the judgment below.

Several years before the enactment of the Special Act, petitioner brought suit in the Court of Claims to recover amounts alleged to be due upon his contract with the Government for the construction of a tunnel as a part of the water system of the District of Columbia. The construction involved certain excavation and certain filling of the excavated space, in part with concrete and in part with dry packing and grout. Dry packing consists of closely packed broken rock, into which is pumped the grout, a thin liquid mixture of sand, cement and water, which, when it hardens, serves to solidify and strengthen the dry packing.

Included in the demands for which the suit was brought were certain claims which are now asserted in this proceeding. They comprise a claim for additional excavation and concrete work alleged to have been required because of certain orders of the contracting officer, and a claim for dry packing and grout furnished by petitioner and placed by him in certain excavated space outside the so-called 'B' line shown on the contract drawings. The 'B' line marked the outer limits of the tunnel beyond which, by the terms of the contract, petitioner was not to be paid for excavation.

In the first suit it appeared that petitioner sought recovery for excavation, for which he had not been paid, of the space at the top of the tunnel where the contracting officer had lowered the 'B' line by three inches, thus decreasing the space for the excavation for which the contract authorized payment to be made. The Court of Claims denied recovery of this item. The contracting officer had also directed the omission of certain timber supports or lagging required by the contract to be placed on the side walls of certain sections of the tunnel. Cave-ins from the sides resulted, making it necessary that the caved-in material be removed and that the resulting space be filled with concrete, all at increased expense to petitioner. The Court of Claims made findings showing the amount of the additional excavation and concrete work claimed, but denied recovery on these items because the order of the contracting officer for the additional work involved a change in the contract which was not in writing as the contract required.

The Court of Claims also denied petitioner's claim for dry packing and grout. It was of opinion that the Government had received the benefit of and was liable for whatever dry packing petitioner had done and for so much of the grout as had actually found its way into the dry packed space and had remained there. But it denied recovery because of deficiency in the proof as to the extent of this space. The only proof offered was the 'liquid method' of computation, based on the number of bags of cement used in the preparation of all the grout furnished by petitioner, the cement constituting a fixed proportion of the grout. The court held, with the Government, that the seepage of the grout into areas outside that dry packed rendered the liquid method an unreliable measure for determining either the volume of the dry packing or the amount of the grout required for it. The court gave judgment accordingly, while allowing to petitioner other claims upon his contract with which we are not here concerned. Petitioner's motions for a new trial were denied by the Court of Claims, and this Court denied certiorari. 303 U.S. 654, 58 S.Ct. 761, 82 L.Ed. 1114.

The Special Act of Congress directed the Court of Claims to 'render judgment at contract rates upon the claims' of petitioner for 'certain work performed for which he has not been paid, but of which the Government has received the use and benefit', and gave jurisdiction to this Court to review the judgment by certiorari. Section 2 of the Act defined the work to be compensated as 'the excavation and concrete work found by the court to have been performed by the said Pope in complying with certain orders of the contracting officer, whereby the plans for the work were so changed as to lower the upper 'B' or 'pay' line three inches, and as to omit the timber lagging from the side walls of the tunnel; and for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court's previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.' The Act further directed that the court should consider as evidence in the case 'any or all evidence' taken by either party in the earlier suit, 'together with any additional evidence which may be taken.'

The Court of Claims in construing the Special Act said (53 F.Supp. page 571, 100 Ct.Cl. page 379): 'A rereading of Section 2 of the act will show that the task which the court is directed to perform is a small and unimportant one. It is directed to refer to its previous findings, take certain cubic measurements and certain numbers of bags of cement which are recited there by reference, multiply those figures by the several unit prices stipulated in the contract for the several kinds of work, add the results, and render judgment for the plaintiff for the sum. If this reading of Section 2 is correct, not only does the special act purport to confer upon the plaintiff the unusual privilege of litigating the same case a second time in a court which once finally decided it, and applying a second time for a review in the Supreme Court of the United States, which once considered and denied such a review. The special act also purports to decide the ques- tions of law which were in the case upon its former trial and would, but for the act, be in it now, and to decide all questions of fact except certain simple computations.' So construed it thought the Special Act directed the Court of Claims to decide again the case or controversy which it had decided in the first suit, 'to decide it for the plaintiff, and give him a judgment for an amount' determined by a 'simple computation, based upon data referred to in the special act.' This it concluded Congress could not 'effectively direct'.

For this conclusion it relied upon United States v. Klein, 13 Wall. 128, 20 L.Ed. 519, in which this Court ruled that Congress was without constitutional power to prescribe a rule of decision for a case pending on appeal in this Court so as to require it to order dismissal of the suit in which the Court of Claims had given judgment for the claimant. Decision was rested upon the ground that the judicial power over the pending appeal resided with this Court in the exercise of its appellate jurisdiction, and that Congress was without constitutional authority to control the exercise of its judicial power and that of the court below by requiring this Court to set aside the judgment of the Court of Claims by dismissing the suit.

As the opinion in the Klein case pointed out, pages 144, 145 of 13 Wall., 20 L.Ed. 519, the Act of March 17, 1866, 14 Stat. 9, conferred on the Court of Claims judicial power by giving it authority to render final judgments in those cases and controversies which, pursuant to existing statutes, had been previously litigated before it. By later statutes this authority was extended to future cases and the Court has since exercised the judicial power thus conferred upon it. See Ex parte Bakelite Corp'n, 279 U.S. 438, 454, 49 S.Ct. 411, 414, 73 L.Ed. 789; United States v. Jones, 119 U.S. 477, 7 S.Ct. 283, 30 L.Ed. 440. We do not consider just what application the principles announced in the Klein case could rightly be given to a case in which Congress sought, pendente lite, to set aside a judgment of the Court of Claims in favor of the Government and to require relitigation of the suit. For we do not construe the Special Act as requiring the Court of...