# Tuttle/White Constructors, Inc. v. United States

> United States Court of Claims · July 29, 1981 · 656 F.2d 644

URL: https://www.frixlaw.com/law-library/cases/8597526

## Case

- **Full name:** TUTTLE/WHITE CONSTRUCTORS, INC. v. United States
- **Court:** United States Court of Claims
- **Decided:** July 29, 1981
- **Citations:** 656 F.2d 644; 29 Cont. Cas. Fed. 81,731; 228 Ct. Cl. 354; 1981 U.S. Ct. Cl. LEXIS 409
- **Precedential status:** Published
- **Opinion:** Concurrence by Kunzig
- **Judges:** Kunzig, Nichols, Smith
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8597526

## Opinion text

KUNZIG, Judge, concurring:
I concur in the result. I would hold that by docketing an appeal with the ASBCA, plaintiff made a binding election of forums under the Contract Disputes Act and is now required to litigate in its chosen arena — the Board — prior to seeking judicial review in this court. See 41 U.S.C. § 609 (a)(1) (Supp. II 1978). Cf. National Electric Coil v. United States, 227 Ct.Cl. 595 (1981) (special circumstances exception). This holding is clearcut and easily understandable, fully supported by the statutory language, and potentially lasting in its significance.
The same cannot be said of the approach taken by the court. Its analysis begins with the statement, not in itself controversial, that "the contractor must decide whether to elect to proceed under the new act at all.” Ante, at 357. It is the next step in the analysis which troubles me. The court states that said election must be made "at an appropriate point.” Ante, at 4. Otherwise, some sort of waiver will be deemed to have occurred. This additional requirement, the basis for the court’s reasoning, finds no support whatsoever in the statutory language or legislative history. Compare 41 U.S.C. § 605 (c)(5) (Supp. II 1978); SCM Corp. v. United States, 225 Ct.Cl. 647 (1980). Moreover, the test propounded by the court for determining the "appropriate point” is exceedingly vague:
However, it is clear that, for the comprehensive purposes of the act to be implemented, the contractor is under certain compulsions of time and choice that point to a requirement that the contractor make a positive election whether to come under the act at such time and in such manner as are consistent with the options that it has and which remain open to it from time to time.
Ante, at 358. Finally, it is worth noting that the rule adopted by the court applies solely to the inherently limited class of contract claims arising out of pre-Act contracts. My proposed rule, by contrast, has no such limitation.
Nothing in the facts of this case shows that plaintiff ever affirmatively waived its statutory right to proceed under *363 the Contract Disputes Act. Instead, when timely filing its petition in this court, plaintiff unequivocally expressed its election to proceed under the Act. The problem, as I see it, is that by earlier docketing its appeal to the Board, plaintiff had already elected its forum and was no longer authorized by the Act to initiate a direct action in this court. Only when the proceedings before the Board have been brought to a finish may this court take jurisdiction of the case. See 41 U.S.C. § 607 (g)(1)(A) (Supp. II1978).
I therefore concur in the result, although, with respect, I prefer to reach it by a different route.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8597526. Public record. Not legal advice.