analogizing the court’s “exception[al]” jurisdiction over a Wunderlich Act claim challenging a board’s proeedurally “unfair” final decision to the court’s authority to excuse administrative exhaustion requirements
How later courts described this case
- analogizing the court’s “exception[al]” jurisdiction over a Wunderlich Act claim challenging a board’s proeedurally “unfair” final decision to the court’s authority to excuse administrative exhaustion requirements
- Rayburn House Office Building garages
Written by the judges who cited it.
The opinion
KUNZIG, Judge,,
specially concurring:
While I am in general agreement with the Chief Judge’s disposition of this cause — inicluding the remand to a new trial judge — I must object to the ultimate legal authority relied upon in his opinion.
I find no basis for the conclusion that the Wunderlich Act authorizes procedural review of Board decisions. In a related context, the Supreme Court has forcefully held that the "arbitrary or capricious”, "substantial evidence”, "abuse of discretion” and other familiar standards do not give reviewing courts a roving commission to engage in procedural review of administrative actions. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).
The proper foundation for our decision is the due process clause of the fifth amendment. See, e.g., Jonal Corp. v. District of Columbia, 533 F.2d 1192 (D.C. Cir.), cert. denied, 429 U.S. 825 (1976). It is well settled that a core element of due process is the assurance of an impartial decisionmaker. See Ward v. Monroeville, 409 U.S. 57, 60 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971); In re Murchison, 349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927); Overlook Nursing Home, Inc. v. United States, 214 Ct. Cl. 60, 66 , 556 F.2d 500, 502 (1977). "Every procedure which would offer a possible temptation to the avérage man as a judge . . . not to hold the balance nice, clean and true” between the State and its opponent "denies the latter due process of law”. Turney v. Ohio, 273 U.S. at 532 .
In my view, the procedural facts of this case indicate a sharp and unpardonable departure from this principle. *
I must take specific exception to the dissent’s grossly inaccurate statement that, "The court today has announced a sweeping expansion of its scope of review in government contract cases.” See infra. In actuality, the Chief Judge writes only for himself in his viewpoint that the Wunderlich Act authorizes procedural review. My