Vista Scientific Corp. v. U.S., 86-1068

• Decision Date: 24 December 1986
• Docket Number: No. 86-1068,86-1068
• Citation: 808 F.2d 50
• Parties: 33 Cont.Cas.Fed. (CCH) 75,180 VISTA SCIENTIFIC CORP., Appellant, v. The UNITED STATES, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 50

808 F.2d 50

33 Cont.Cas.Fed. (CCH) 75,180

VISTA SCIENTIFIC CORP., Appellant, v. The UNITED STATES, Appellee.

Appeal No. 86-1068.

United States Court of Appeals Federal Circuit.

Dec. 24, 1986.

John C. Fenningham, Corr, Stevens & Fenningham, Trevose, Pa., argued, for appellant.

Paul J. Ehlenbach, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. M. Howard Silverstein, Office of Gen. Counsel, Dept. of Agriculture, of counsel.

Before NIES, Circuit Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.

NICHOLS, Senior Circuit Judge.

The Department of Agriculture Board of Contract Appeals rejected two claims for equitable adjustment, Nos. 77-142-4 and 78-108-4, 83-1 B.C.A. p 16219, under a contract awarded in 1976 for construction of a two compartment, walk-in cold chamber. These decisions were subject to the Wunderlich Act, 41 U.S.C. Secs. 321-322, and not to the Contract Disputes Act, 41 U.S.C. Secs. 601-613. Therefore, to obtain judicial review, appellant, Vista Scientific Corp., sued under the Tucker Act, 28 U.S.C. Sec. 1491, in the Claims Court. That court conducted a Wunderlich Act review, as explained hereinafter and, on cross-motions for summary judgment, it affirmed both rejections. Vista appealed to this court and we affirm the decision of the Claims Court.

Discussion

That the Claims Court, normally a trial tribunal, should be performing an appellate function in this case, may appear anomalous and should be explained.

The former Court of Claims had jurisdiction under the Tucker Act, over government contract money claims both for breach, and for relief under the contracts in the form of equitable adjustment. In United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), the Supreme Court held that procurement agencies could preclude judicial review of their decisions relating to contract disputes, except as to fraud issues, by exacting the contractor's acquiescence in contract clauses making agency board's decisions final both as to fact and law. This result was not deemed desirable by Congress, which enacted the Wunderlich Act, so called, to overturn the decision above cited of that name. Under the terms of this Act, board decisions could be accorded no finality on questions of law, but findings could be made final as to fact issues so far as supported by substantial evidence and not arbitrary or capricious, etc., and thus the statute restored a significant role to the Court of Claims.

Under the Wunderlich Act, the Court of Claims at first received testimony additional to that in the board record, determining whether board findings were supported by substantial evidence by weighing the findings against both record testimony and that newly taken. In United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court construed the Wunderlich Act to restrict the Court of Claims to a purely appellate function in disputes clause cases. The court could remand to the board for further testimony, if needed, but could not take any itself, nor make any fact findings.

The Court of Claims at that period, besides the Presidentially appointed article III judges, included several persons called "commissioners" in the rules; later they were called "trial judges" and, collectively, the court's "trial division." The Bianchi decision appeared to eliminate any function for these commissioners to perform as to most contract disputes clause cases, for they were primarily takers of testimony and fact finders. However, the judges, having found the commissioners' services of value, were reluctant to dispense with them, and a way to utilize them was found. The rules were amended for Wunderlich cases only, Ct.Cl.Rule 163(b), to provide that in such cases both parties should file motions for summary judgment, which motions were referred to commissioners for advisory or recommended opinions. That there was no fact issue requiring trial was a conclusion forced by Bianchi. The commissioners usually reviewed the records, received briefs, and heard oral arguments. In other than Wunderlich cases, cross-motions for summary judgment went before the article III judges with no participation by the commissioners. In Wunderlich cases, the recommended opinion of the commissioner was, unless acquiesced in by both parties, considered on exceptions, oral arguments, and new briefs by the article III judges.

The Contract Disputes Act of 1978 altered Wunderlich procedure in several ways. A contractor dissatisfied with a contracting officer's decision, could file a suit and have his trial with the court, bypassing the agency boards. If, however, he preferred the board route, the board decision was treated as a trial level decision; the function of the court being to accord appellate review, clearly a function of the article III judges and not of the trial division. It was no longer, in form, a Tucker Act suit. The boards also obtained jurisdiction of breach claims. The effective date provisions of the Contract Disputes Act of 1978 were such as to leave a number of cases of contract disputes in the pipeline to be governed, not by it, but still by the Wunderlich Act unchanged. They crop up from time to time and the instant case is one of them.

The Federal Courts Improvement Act of 1982 created the Claims Court, whose original judges were for the most part "grandfathered" former Court of Claims commissioners. It succeeds in many respects the "trial division" of the former Court of Claims. Suits under the Tucker Act, if pending in the trial stage, were transferred there. Since no legislation provides for judicial review of determinations made under the Wunderlich Act, except the Tucker Act, it follows that new petitions for review of Wunderlich cases had to be filed in the Claims Court under that Act. Yet, that court is still precluded by the Bianchi case from conducting trials, and its function in Wunderlich cases is of necessity purely appellate. In view of the very different disposition made by the statutes respecting board decisions in Contract Disputes Act cases, the disposition of Wunderlich cases is so anomalous, it reflects possible inadvertance on the part of Congress, or a sense that Wunderlich cases were, or else soon would be, so few that legislation respecting them was not needed. At any rate, after a board decides a Wunderlich case, facts and law, there ensue since 1982 two stages of appellate review, Claims Court and here, both...