The opinion
Nichols, Judge,
concurring:
I join in the foregoing opinion of the court and add the following: This is our third Wunderlich Act 30-day filing case for 1972, the others being Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl. 159 , 453 F. 2d 1260 (1972); and Roscoe-Ajax Constr. Co., Inc. v. United States, post, at 133, 458 F. 2d 55 ; and two more 1972 Wunderlich cases involving different notice requirements may be added: Hoel-Steffen Oonstr. Go. v. United States, 197 Ct. Cl. 561 , 456 F. 2d (1972); International Tel. & Tel. Co. v. United States, 197 Ct. Cl. 11 , 453 F. 2d 1283 (1972). For prior decisions, see cases cited in Judge Davis’s fn. 2 and cases cited in those cases. Thirty day filing requirements could easily be the commonest kind of Wunderlich Act dispute. It appears to me that the repeated necessity of adjudicating such sterile controversies calls into play the Chief Justice’s admonitions for lawyers and judges to co-operate in eliminating wasteful use of lawyer power and judge power. Here, we have no great reason to believe Judge Davis’s careful analysis will contribute anything to the ultimate disposition of the case. We seem to have got into this latest round via our holding that failure to file an appeal on time could be waived if the Board considered the appeal *82 on the merits. Burnett Constr. Co. v. United States, 186 Ct. Cl. 953 (1968), in which defendant repudiated its own concession in the trial tribunal. Defendant’s position in that case, if sustained, would have stripped the Boards and defense counsel before the Boards of power to do this, as long as the Disputes Clause language remained unchanged. It is evident that untimely appeals are likely to occur. Few lawyers never have to ask for extension of time to file a paper in court, or for permission to file it late. If bona -fide disputes cannot be resolved in the intended and agreed upon manner, because of a minor procedural lapse anyone may be guilty of, no one will benefit in the long run.
The Shaoht case, cited by Judge Davis, stimulates reflection. The Justices decided, over three dissents, in a deserving case, to waive the 30-day requirement of their own rule as to certiorari petitions. Certiorari petitions are often used by unsuccessful litigants for delay. Such petitions seek review that must be denied to most petitioners, and thus it is reasonable to demand that the successful ones turn square corners. I ask whether the Disputes Clause 30-day provision has equally strong reasons looking toward its undeviating maintenance. What evil is averted if an appeal filed in 31 days is not heard on the merits ? I think any rule of law, any regulation, is better interpreted and applied if this sort of question is asked and answered. I am not in a position to answer it and do not do so here.
This is the sort of pettifogging controversy that causes intelligent people to prefer other careers over service on the bench. If the Boards cannot find a rational and workable line under the existing clause, it is to be hoped the mysterious processes that generate standard Government contract clauses may be set to work to géstate a substitute or amendment.