The opinion
Howell, Judge,
dissenting:
On the basis of the documents and pleadings before the ■court, I am of the opinion that defendant’s motion for summary judgment should be denied.
The majority holds that plaintiff’s letter of August 18, 1944, contains no suggestion that plaintiff was asking for extra-legal relief. Presumably the majority has reference to the fourth paragraph of plaintiff’s letter which calls the contracting agency’s attention to Article 4 of its contract dealing with equitable adjustments for excess costs occasioned by unknown conditions of an unusual nature. This “assertion of contract rights” is said to bar plaintiff’s suit under the Lucas Act as interpreted by the Supreme Court in the Fogarty decision. I do not believe that under the Fogarty decision any particular form of notice by a claimant under the Lucas Act is required so long as the notice is sufficient to apprise the agency that it was being asked to grant extralegal relief under the First War Powers Act for losses sustained in the performance of its war contract. In my opinion the letter of August 18, 1944, was sufficient when read as a whole, to apprise the Civil Aeronautics Administration that it was being asked to grant extra-legal relief. I say this because I believe that a contracting agency, such as the CAA, was sufficiently familiar with the standard form of government contract to know that delays caused by adverse weather are specifically stated by that contract to be justification only for an extension of the performance time and are not, either ‘by the terms of the contract or the decisions of the courts, a reason for granting the equitable adjustment in price sought by plaintiff. The contracting agency’s reply to plaintiff’s claim suggests that insofar as plaintiff claimed it was required by the government to keep its idle equipment on the job during bad weather, the claim -was one for breach of contract which that agency had no power to consider; and that insofar as the claim was merely a request for additional compensation for losses occasioned by delays due to adverse weather, the claim was an equitable one which might be favorably considered by the Comptroller General and Congress. This reply indicates clearly that the agency was aware that the nature of the claim was at least in part extra-legal despite plaintiff’s reference to Article 4 of the contract.
*157 We have had occasion in other cases to consider the nature and sufficiency of requests for relief under the Lucas Act. In Harry W. Simpson, et al., d/b/a Simpson Construction Company v. United States, No. 49203, decided February 5, 1952, we concluded that the documents containing the alleged requests for extra-legal relief must be considered as a whole,, and that regardless of the manner in which plaintiffs characterized their claims it was the nature of the claim embodied in the request for relief that determined whether or not the-resulting loss was cognizable under the terms of the Lucas Act. Thus, I believe that the Simpson decision has already disposed of the gist of defendant’s contention that plaintiff’s characterization of his claim as legal or equitable is determinative of whether or not the requirements of the Lucas Act have been met. In that case plaintiff concluded its “request for relief” document with a prayer for equitable relief. In the body of the claim, however, plaintiff not only mentioned specifically Articles 3 (Changes) and 4 (Changed Conditions) of the contract as bases for relief, but the facts alleged supported claims of a nature properly cognizable under those Articles. In passing on plaintiff’s claims, the contracting officer treated them as contract claims and granted plaintiffs the monetary relief requested to the extent that the facts underlying the claims were established.
In the Fogarty case, the Circuit Court of Appeals (1' 76 F. 2d 599 ) held that the claims embodied in the requests for relief relied upon, were claims for which, if established, the United States was liable at law to the plaintiff bankrupt, and for the recovery of which the bankrupt was entitled to maintain an action at law against the United States. The Court further commented at page 603:
And they were so treated when finally adjudicated in the bankruptcy court. They are not “equitable” claims within the meaning of the Act.
Before the Supreme Court, plaintiff in the Fogarty case attacked the holding of the Circuit Court on the ground that the Lucas Act contained no definition of the term “request for relief.” In affirming the Circuit Court decision, the Supreme Court conceded that the Act contained no definition of the term, but held that whatever the form of notice, *158 it must be sufficient to apprise the agency that it was being asked to grant extra-legal relief.
Keeping in mind the precise facts and contentions upon which the courts passed in the Fogarty case, I assume that Lucas Act relief was not intended to be available to contractors whose claims would, if established, find their solution within the framework of their contracts; that it does not afford a procedure whereby a claimant can waive the contract and sue, for grace. Thus, as in the Simpson case, where a contractor’s claim was founded upon facts and circumstances which, if established, would have entitled that contractor to relief under the terms of its contract, the claim was held not cognizable under the Lucas Act. I do not believe that the mere fact that the contractor might not have been able to establish his right to contractual relief in whole or in part to the satisfaction of the contracting agency would transform his claim into an equitable one cognizable under the Act. On the other hand, as here, if the facts underlying the contractor’s claim would not, if established, entitle him to relief under his contract, then I believe such a contractor may well have a cause of action under the Lucas Act regardless of the terminology used in asserting his claim or the precise form of notice used to acquaint the contracting agency with his complaint. As we said in McKenzie v. United States, 119 C. Cls. 435 , the request for relief need not mention the First War Powers Act specifically. Furthermore, I do not think a contractor forfeits his right to seek relief under the Lucas Act merely because he may, intentionally, or through ignorance, have attempted to persuade his contracting agency that he was entitled to the relief sought by virtue of the terms of his contract, provided the claim was clearly beyond the scope of the particular contract. Conversely, a contractor cannot bring himself within the orbit of the Lucas Act merely by showing that he has asked for relief as a matter of grace, if his claim is in fact one clearly arising under his contract. If Section 201 of the First War Powers Act had created in contractors a right to the relief authorized, we might hold that the notice of claim would have to specifically request equitable or First War Powers Act relief. Since that Act did not confer such a right, and no procedure whatever *159 was available to contractors to secure consideration of their situations in the light of Section 201,1 do not see how we can require more of a contractor than that he put the agency on notice in some manner, of circumstances which might move that agency to exercise its discretion to confer the gratuity authorized by the Act.
Contractors do not always make their written complaints to contracting officers with a lawyer at their elbows. The usual contracting officer, on the other hand, is not only familiar with the standard form of government contract, but has available, at no expense to himself, the services of attorneys in his agency who are experts in interpreting the meaning of that contract’s various provisions. I can conceive of a contractor who has suffered monetary losses through long delays due to unusually bad weather, believing that Article 4 would cover his situation. I believe that the contracting agency in question would know at once that such losses were not com-pensable under the contract and that the only manner in which monetary relief could be afforded the contractor would be under the discretionary powers conferred on war agencies by the First War Powers Act. If the agency did not choose to grant such equitable relief, I do not think the contractor should be barred from relief under the Lucas Act merely because he mistakenly supposed that his contract covered his situation.
Unless we judge these “requests for relief” on the basis of the actual nature of the claims presented, I think the results will be unfortunate both for claimants and for the Government. If a claimant’s characterization of his claim as contractual or equitable is to control, then a contractor who had a perfectly good contract claim but who waited too long tmder the terms of his contract to present it as such, may qualify for relief under the Lucas Act if, when he ultimately asked for help, he couched his request in language of grace rather than right. Other contractors, who made claims without reference to their contracts, and whose claims were nevertheless properly considered by the agency as contractual and denied because not established on the facts, could rely on such claims for relief under the Lucas Act.
*160 In the instant case, the establishment of the sufficiency of the request for relief was a preliminary step to the proof of the merits of plaintiff's Lucas Act claim. Inasmuch as neither of the parties saw fit to present all of the pertinent documents (including the contract) to the court for consideration, I do not think it is possible for us to decide that there is not a genuine issue as to a material fact relating to the merits of plaintiff’s claim. Assets Service Corporation v. United States, No. 49011, decided January 8, 1952. On the documents before us, I believe there is sufficient doubt to justify a trial on the merits.
Chief Judge Jones concurs in the foregoing dissent.