Petition for Writ of Certiorari — Warren v. United States
Supreme Court brief1974
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In The : °
Supreme Court of the United States
Clifford E, Warren,
Petitioner
The United States of America
Respondent
PETITION
FOR WRIT OF CERTIORARI
AY
Filed October___1974
Clifford E. Warren
Pro se
Petitioner's Address:
2650 Marston Dr.
Anchorage, Alaska 99503
FABLE OF CONTENTS
Page
Table of Cases i
Texts and Treatises xii
Petition xiii
Judgments and Opinions Rendered
in the Courts Below XV
Zrounds on Which the Jurisdiction
of this Court is Invoked xvi
Questions Presented for Review xvii
Constitutional! Provisions and
Statutes Which the Case
Involves ixx
Statutes:
42 USC 1855 e. XX
41 USC 321 xxi
4i USC 322 xxii
Rules of the United States
Court of Claims xxiii
Statement of the Case 1
Facts 5
Conclusions of Law
I. Void Judgment
1. The Judment in Ct.Cl.
231-68 is null and void 16
2. Public Policy 28
atl tenet a Reba aati rt ee athe a -erp ln a hee eRe RR IT
Court of Claims refusal
to interpret or apply
a Federal statute or to
take common law into
consideration in inter-
preting the contract.
Page
47
i. Denial of Due Process
S. Lack of Jurisdiction
of the Court of Claims
- No time limit for
attacking a Judgment
as void.
If. Standing to Attack Judgment 51
III. Court may Entertain Its
Own Motion
Conclusion
65
67
ie
TABLE OF CASES
Page
Armour Packing v_ JS
S55 TS Soe OES Ct 28 17,34
Adams Exp Co. v Kentucky
35 S Ct 324 22
A. B. Kirschbaum v Walling,
62 S Ct 1116 45
Austin v Smith
3i2 F 2d 337 47,48
Brown v Wiles
20 How 42 17
Bronson v Kinzie
1 How 311 17
Bulkley v_US
19 Wall 37 17
Bronson v Rodes
7 Wall 229 4 19535
Brown v Barry
3 Dall (us) 365 20
Brooklyn L. Ins. v_ Dutcher
45 US 269 36
Burdon Central Sugar Ref v Payne
lL? 3 Gt fod 36
— as
il ie eared! a
esate iret aed ee
ii.
Brown v Spilman
15 S Ct she
Butte Miners v Butte
94 Pl
Bookout v Beck
25 F 2d £23
Bernard v Idaho Bank & Tr.
21 Idaho 595, 123 P 1
Brown v Fidelty Union Tr.
loo Nu Ba 06, 9 A od 3ll
Bankers HKtge. v US
CA5th 1970, Y23 F 2d 73
Caminetti v US
ya US 470, 37 S Ct 192
Calder v Bull
3 Dall 361, 1 L Ed 648
Conn. Mut. L. Ins. v C,,shman
108 US 51, 2S Ct 236
City Street Imp v Pearson
T2l Cal 60, bs P 962
Calmar SS Corp v Scott
73 8 Ct 739
Calderon v Atlas’ SS
18 S Ct 585
11,47
18, 34
20
35
36
iii.
Crosby v Bradstreet Co.
CA 2d 1963, 312 F ed tsk
cert. den. &3 S Ct 1390
Caputo v Globe Indem Co. ;
D.C. Pa. 1966, rel Fellas 239
Chappel v Chappel
lo NY 215, 54 Am Dec 96
Continental Gin v Arnold
1457 P 613
Conway v Monidah Trust
132 P 26 e
Davison v Yon Lingen
5 S Ct 346
Dunlap v Dunlap
12 Wheat O74
Dunham Vv lst Nat Bx in Sioux Falls
Page
1972, 201 NW 2d 227
Ensminger v Powers
2 ae eo? Le&a 732
Ex parte Mvers
l2l Neb 55, 235 NW 143
Florida ©.R. Co. v Sscnutte
103 US 118
Farmers & M Bk v Fed Hes Bk
262 US 619, 43 S Ct 661
ona eR, SM
iv.
Flowers v Ki
145 Nc 234, oR SE 107)
Fiske v Buder
125 F 2d Syl
Green Cty v Quinlan
29 S Ct 162
Green v Biddle
= Wheat 1
Goldstein v Peter Fox Sons
135 NW 1650
Great Northern Co-op v Bowles
146 F 2d 269
Hendrickson v Apperson
us US 105, 35 S Ct nn
Hedges v Dixon Ct
150 US 182, 14 » Ge fs
Yelvering v New York Trust
Sh S Ct 806
Hobbs v McLean
6 S Ct 670
Harrison v Fortlage
16 S Ct 4dé
Yerzog v Mittleman
65 P 2d 354
4arrington v Harrington
50
60
17
18
22
34
35
46
55
Ve
Yameli v Sejipek
27h NYS R70, 152 Mise 799
4arrey v Farmers All.ins.
13h Kan 5, 4 P 2d 460
In re Borek
(> Na 1960) 180 F Supp 567
In re Casco Chen.
335 F 2d 6u5, 652
Ingerton v lst Nat Bk & Tr.
CA 10th, 291 F 2d B62
Imperial Pattern « Color v Sampsell
11h F 2d 49
In re Estate of Crenidas
(D Alaska 1953) 14 FRD 15
Kaw Valley Drainage v_ Union
Pacific R.R.
I63 Fed 37 CCA*&th (1908)
Kelly & Another v_ Town of Milan
21 Fea &68, C Ct W.D. Tenn (128), )
Leslie v Gibson
103 PF LL5
Tepard v Michigan C.k. Co.
130 Nw 665
Merrit v_ JS
267 US 33" 340=45 (1925)
59555
McCullough v Comm of Va.
lfé Us 102, 19 S Ct 134
Macario v Alaska Gastineau Mine
165 P 73
MeDowell v Celebrezze
cA Sth, 1962, 310 F 2a 43
Martina Theatre v Schine Chain
CA 2d, 1960, 278 F 2d 798
=
Memphis & L.ReR. v Southern Exp.
6 S$ Ct Sud, 626
Misco Leasing v Vaughn
450 F 2d 257
Marauette Corp v Priester
TED SC 196) 234 F Supp 799
Nudelman v Thimbles Inc.
2-25 Mo App 553, 4O SW ed 275
Newby v Yellin
257 Ill App 526
\
Norwood Morris Plan Co. v McCarthy
i NE 2d 450
Osaka Shosen Kaisha v TS.
57 S$ Ct 356
\
Old Colony Tr. v Comm.Int.Rev.
57 S Ct 613
N
22
22
vii.
O'Brien v Miller
10 5 oe Aue
Putnam Mills v JS
292 CtCl L479 F2 1334, 1337
(1973)
Per Thompsor J. Ogden v Saauders
12 Wheat 213
Phila. Ww & BR y Trimble
10 Wall 367
People v Miller (1939)
339 I1l1 573, 171 NE 672
Reynolds v Lloyd Cotton Mills
99 SE 249
Reynolds v Yol. St. L. Ins. Co.
TaxeCiveAppe, BO SW od 1087
Rice v Denny Koll &
199 NC 154, 154 SE re
o
State ex vel Cstv of Terre Haute
vy Kolsem et al
29 NE 595, S Ct Colo (1916)
Scott v Watzins
Al - os er a P
9 Yald rd He Peat hs
5 St Colo (1016)
Southern Surety v Oklahoma
yy TT.
ais Va Goa. 26 S Ct 692
lw
gay 4
Vr
oD
11
eR AR OE ei
viii.
S,nderland v_ Braun Packing
Be A 126
Smead v Sutherland
lll ed
Smith v Coucher
(DC) 9 Aigpka 730
Strand v Halverson
264 NW 246
Swedish Am. Nat Bk v Dickenson
69 Nw 455
Sands v Linch
182 SW 561
Sebastiano v US
(ND Ohio 1951) 103 F Supp 278
Surowitz v Hilton ‘Iotels
353 JS 363, 56 S Ct &
Sand Fy314ration v Cowardin
29 S Ce ena
State ¥ Romero
415 P 2d 537
SEC ¥ Dumont Corp.
(SD NY 1969) 49 FRD 342,
13 PR SERV2d he.l
St. Br. of Prairie du Rocher v
Brown (1931)
2623 111 App 312
69
35
48
48
i{X.
Toledo D.&.B.R. v Jamilton
Toh US 296, 10 S Ct 546
Taylor v Continent2l Supp-
76 F 2d 5706
Trimble v Seattle
35 & Ct elo
Treat v White
21 8 Ct Sil
Taft v Donellan Jerome
OT F 2d 507
"T:4
JS ex rel Von Joffman v_ Quincy
y Well 535
JS v Cooper Corp.
61 S C+ 742
US v Palmer
3 Wheat 610
US v Amariean Trycking
310 US e3h, % L Ed 1345
JS v lWyapins-Dize
53 F Sunn. 593
JS v Wissahickon Tool Wks.
CA2da 1952, 290 F 24 S36
17
20
20
29
. 60
65
22
* eee es |
:
Xe
JS v American Truckin
Sa) Ct 1959, 61 Ss C+ 53
IS v Standard Brewery
LO S Ct 139
JS ¥# Choctaw N
21S Ct 149
"10 a A r nandaAna
S ie la aza Arrendodo
£ Pet 691
US y Boisdore
11 How 63
US v Melichar
Ve WiSe L¥Te
Js v williams
D.C. Ark 1952, 109 F Supp 456
Js v sSotis
CCA7th 1942, 131 F 2a 783, 7287
Jo Vv Milana
Jliman v JS
76 S Ce ),a7
Jniversal Oil Prods v Root Ref.
1946, 66 S Ct 1176
vest Va. Oil & Gas v Geo. E.
5reece umber
eho fF #a (Vc
66
59
D.C. Va, 1970, 309
Wrignt v Cty Seh Bd
F Supp $71
western 5+ nel Enantion Vv JS
CA 10th 1979, heh F 54 737, 739
. an
Jitners v Miller
149 Kan 123, 34 P 2d 110
Weber v Weber
140 Nw 1052
wueeler-Steanzel V Uge WenaAow
eee
Glass Jobbers
(CCA 34) 152 F 86h
16 S Ce 419
oq iOwski v Ay, Steel * wire
(CCA 4+) 257 F a
A his mT 20 TF D y i .
Atchison T.&0l.!.H. Vv itaesman
aq Pr 370
+ Rat “In 1 Tro94
Root Ref. v Univ. Oil Prod.
. 7 =r. 72 — — ~ WW
A 305 LUBDy O9. 5S Ce hos
: . ~ > conte}
. * - ; -
lies Auburn spars Plug
a a > -
7 3 ’ t *) - eee
Pe rr oe} he) ® 4
xii.
TEXTS AND TREATISES
Page
Black's Law Dictionary 55,58
Moore's Federal Practice
2nd Ed. Vol. 7 10,64
12 Am Jur 22
2
SO Am Jur 29,29,
5S
14 Am Jur 24 53
16 Am Jur 2d 36,42
17 Am Jur 24 19,28,
J. S. Supreme Court Digest, 16,18,
Lawyers Ed., Vol. 6 19
J. S. Supreme Court Dige-t, 11,47
Yol. l2-A4
xiii.
IN THE
SUPREME COURT OF THE UNITED STATES
Clifford E. Warren,
Petitioner,
Ve
The United States of America,
Respondent.
PETITION
FOR WRIT OF CERTIORARI
To the Honorable, The Chief
Justice and Associate Justices of the
Supreme Court of the United States: The
above named petitioner, Clifford E. War-
ren, respectfully represents:
1. Clifford E. Warren is a
natural born citizen of the United States,
, tax payer, and a resident of the State
of Alaska. ‘le and his wife, June, are
the sole owners of warren Painting Co.,
Inc. which is their only source of income.
ee The original dispute in Ct.
Cl. 231-68 arose from Contract No. DA 95-
507-ENG-2970, dated 12 January 1965 be-
ot
tween Chris Berg, Inc., Contractor, and
xiv.
The United States of America, Owner, act-
ing oy and through the U. S. Army Corps of
Engineers, Alaska District. Said contract
called for Phase III Repair to the 59040th
Hospital, Elmendorf Air Force Base, Alaska
which had been severly damaged during the
Ee which struck Alaska on March 27,
1964.
3. The authorized funds in that
contract were those allocated under 2
USC 1855 e. The tontract work has been
fully performed and accepted by the Govem-
ment. Final payment has been made there-
under save as hereinafter set forth,
plaintiff Berg having expressly reserved
the claims which are the subject matter
of this action. Chris Berg Inc. has given
written permission to Warren Painting Co.,
Inc. to pursue the claims.
4. Ct. Cl. 231-68, Chris Berg Inc.
v. United States, was processed by Warren
Painting Co., Inc. (Clifford E. Warren)
as legal representative of Chris Berg Inc..
The claims in that case involved painting
work only, which had been directed to be
performed by the defendants.
5. Judgment was entered in Ct.
Cl. 231-68 on February 18, 1972 denying
plaintiff Chris Berg Inc. all claims ex-
cepting a minor one amounting to approxi-
mately $800.00. Chris Berg Inc. reserved
the right to further pursue the claims.
XV.
6. Petitioner's independent
action to void, set aside, or reverse
judgment in Ct. Cl. 491-73 was filed in
December 1973.
7. Court of Claims Order grant-
ing respondent's Motion for Dismissal in
Ct. Cl. 491-73 because of petitioner's
a lack of standing is deted July 10,
197 °
JUDGMENTS AND OPINIONS RENDERED
IN THE COURTS BELOW
1. Court of Claims Order dated
July 10, 1974 in Ct.Cl. 491-73.
2. Court of Claims Judgment dated
February 18, 1972 in Ct. Cl.
The above are attached hereto.
Xvi
GROUNDS ’ON WHICH THE JURISDICATION
OF THIS COURT IS INVOKED
(i) The Court of Claims Order in
1974 is erroneous.
(ii) The Court of Claims Judgment
in Ct.Cl. 231-68 dated Febru-
ary 18, 1972 is illegal, null,
and void and violates public
policy.
é (iii) The Court of Claims Judjment
in Ct.Cl. 231-68 denied due
Process.
(iv) The United States Court of
Claims was without jurisdic-
tion to render the void Judg-
ment in Ct.Cl. 231-68.
(v) The jurisdiction of this
Court is invoked pursuant to
; 28 USC 1255 (1970), Vol. 7,
, Page 7560.
> Xvii
V“
QUESTIONS PRESENTED FOR REVIEW
l.
Ze
Petitioner's standing to attack
the Judgment in Ct. Cl. 231-68.
The Judgment in Ct.Cl. 231-68
is illegal, null, and void be-
cause it was in direct violation
of a Federal statute - 2 US
1855 e.
The Judgment in Ct.Cl. 231-68 is
in defiance of g]]. common law
and that set down by the United
- States Supreme Court as to the
interpretation of contracts.
The Judgment in Ct.Cl. 231-68
is so arbitrary as to deny due
process as guaranteed under the
Fifth and Fourteenth Amendments
of the Federal Constitution.
The Judgment in Ct.Cl. 231-68
denied or impaired petitioner's
right to contract as guaranteed
by the Federal Constitution
while the rights of others have
not been so denied or impaired.
Abnigation of judicial function
by the Court of Claims in refus-
ing to interpret or apply a Fed-
eral statute and refusal to in-
terpret a vital provision in the
contract specifications favor-
able to the plaintiff.
eee on ee ere
ai Rack CARS
xviii
In arriving at its Judgment in
Ct.Cl. 231-68 the Court reworded
a sentence in the contract spec-
ifications to create a patent
ambiguity where no ambiguity had
existed and so denied an import-
ant portion of the claims.
Whether the United States Sup-
reme Court will grant petitioner
a Motion or entertain a Motion
of its own to void, set aside,
or reverse the Judgment in
Ct. Cl. 231-68.
Whether fraud upon the court
was committed by respondents
in Ct. Cl. 231-68.
ixx.
CONSTITUTIONAL PROVISIONS AND
STATUTES WHICH THE CASE INVOLVES
1. The Constitution of the United
States:
Article IV, Federal Relation
Section 1. Full Faith and
Credit
Section 2. Privileges and
Immunities of
Citizens
Amendment V, Rights of
Persons
Amendment XIV, Rights of
Citizens
2. Statutes:
42 uSC 1855 e. Vol. 9
Page 7980
41 USC 321 Vol. 8
Page 9507
41 USC 322 Vol. 8
Page 9507
ei erg
STATUTES
42 USC 1855 e. Vol. 9 Page 7980
Repair and reconstruction of dam-
aged United States facilities; avail-
ability of funds:
If facilities owned by the United
States are damaged or destroyed in any
major disaster and the Federal agenty
having jurisdiction thereof lacks the
authority or an appropriation to repair,
reconstruct, or restore such facilities,
Such Federal agency is authorized to re-
pair, reconstruct, or restore such facil-
ities to the extent necessary to place
them in a reasonably usable condition -
and to use therefor any available funds
not otherwise immediately required:
Provided, however, that the President
shall first determine that the repair,
reconstruction, restoration is of such.
importance and urgency that it cannot .~
reasonably be deferred pending the enact-
ment of specific authorizing legislation
or the making of an appropriation there-
Sor If sufficient funds are not avail-
able to such Federal agency for use in .
repairing, reconstructing, or restoring
such facilities as above provided, the
President is authorized to transfer such
“ederal agency funds made available under
this chapter in such amount as he may
ietermine to be warranted in the circum-
stances. If said finds are insufficient
.
XXL «
for this purpose, there is authorized to
be appropriated to any Federal agency
repairing, reconstructing, or restoring
facilities under autnority of this section
such sum or sums 4s may be necessary to
reimburse appropriated funds to the amount
expended therefrom.
41 JSC 321 Vol. 8 Page 9507
Limitation on pleading contract
provisions relating to finality; standards
of reviews
No provision of any contract entered
into by the United States, relating to the
finality or conclusiveness of any decision
of the head of any department or agency or
his duly authorized representative or
board in a dispute involving a cuestion
arising under such contract, shall be
pleaded in any suit now filed or to be
filed as limiting judicial review of any
such decision to cases where fraud by
such official or his said representative
or board is alleged: Provided however,
that any stich decision shall be final and
conclusive unless the same is fraudulent
or capricious or arbitrary of so grossly
erroneous as necessarily to imply bad
faith, or is not supported by substantial
evidence.
Pca! date rsa ab line LENO DRE
XXiLi «
hl USC 322 Vol. & Page 9597
Contract provisions making decisions
final on cuestions of law.
No government contract shall contain
a provision making final on a cuestion
of law the decision of any administrative
official, representative, or board.
7+ oh &
RULES OF THE UNITED STATES
COURT OF CLAIMS
Rule 152. Relief from Judjment or
Order (FRCP 60)
(a) Clerical Mistakes: Clerical mistakes
in judgments, orders, or other parts of
the record, and errors therein arising
from oversight or omission, may be correc-
ted by the court at any. time on its own
initiative or on tne motion of any party
and after such notice, if any, as the
court orders.
(b) Mistakes; Inadvertence; Excusable
Neglect; Newly Discovered Evidence; Fraud,
etc; Response; Reply: On motion conform-
ing to Rule 51 and upon such terms as are
just, the court may relieve a party or
his legal representative from a final
judgment, order, or proceeding for the
following reasons: (1) mistake, inadver-
tence, surprise, or excusable neglect;
(2) newly discovered evidence which by
due diligence could not have been dis-
covered in time to move for a new trial
under Rule 151 (c); (3) fraud (whether
heretofore denominated intrinsic or ex-
trinsic), misrepresentation, or other
misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has
been satisfied, released, or discharged,
or a prior judgment upon which it is
based has been reversed or otherwise
vacated, or it is no longer ecuitable
that the judgment should have prospective
application; or (6) any other reason
yma g
xxiv.
justifying relief from the operation of
the judgment. The motion shall be made
within a reasonable time, and for rea-
sons (1), (2), and (3) not more than 1
year after the judgment, order, or pros
ceeding was entered ortaken. A motion
under this paragraph (b) does not affect
the finality of a judgment or suspend its
operation. This rule does not limit the
power of the court to entertain an in-
Jependent action to relieve 2a party from
a iudgment, order, or proceeding, or to
set aside 2 judgment for fraud upon the
court. The relief provided oy this mile
shall be in addition to the relief avail-
able to the Unite? States under Rule
151(a)(2). A response to 2 motion under
this paragraph may be filed within 15
lays after the motion is served. A
reply may be filed within 10 days after
the service of the response. (See Rul3
2lu(e) as to duplication and number of
copies.)
l.
STATEMENT OF THE CASE
In December 1973 petitioner
filed an independent action under the
rules of the United States Court of Claims
as revised September 1, 1969, Rule 152 (b)
clauses () and (6) (FRCP 60 b), maintain-
ing that the Judgment in Ct. Cl. 231-68
was void in that it was in violation of
Federal Statute 42 JSC 1855 e, and that
the Court had abnigated its judicial func-
tion in refusing to interpret or apply
42 USC 1855 e, and that the Court did not
have jurisdiction to render a Judgment in
direct violation of a Federal statute.
While maintaining that the erro-
neous Judgment had been rendered because
of fraud on the court by the defendants,
netitioner made it perfectly clear that it
ec en eT |
Ts
OS ae
BOO ai ANNE La
ae wed wh:
2.
was up to the Court of Claims to decide if
they had been led into making a void Judg-
ment because of fraud on the court by the
defendants; and regardless of whether
there was fraud on the court by the defen-
dants, the attack was on the Judgment as
being void because it had been rendered in
violation of a Federal statute and the
Court had no jurisdiction to render a de-
cision in a clear violation of a Federal
statute.
Petitioner informed the Court in
several briefings that he was not filing
suit or appealing the Judgment, but was
attacking it as null and void. Petitioner
sought no relief for himself other than to
have Judgment voided and set aside and to
have Judgment made to the real party of
‘interest, Chris Berg, Inc.
Petitioner brought to the Court's
3.
attention that since this was not a suit
but an independent action to attack the
Judgment as being null and void, that the
petitioner had standing in several capa-
cities to attack the Judgment in that the
Judgment had irreparably damaged him. In
spite of this the Court of Claims granted
defendants' Motion to Dismiss on the basis
that petitioner did not constitute the
real party in interest in the dispute and
it relied on Merrit v United States, 267
U.S. 338, 340-45 (1925) and Putnam Mills
v United States, 202 Ct.Cl. 1, 479 F.2d
1334, 1337 (1973) both cases having to do
with a subcontractor's standing to sue;
not with a party's standing to attack a
Judgment as illegal, null, and void as
being in violation of a Federal statute,
and that the Court did not have jurisdic-
-
4.
tion to render such a judgment, and that
the Judgment was against public policy.
The Court further concluded that
the petitioner failed to describe an ac-
tionable claim of fraud under Rule 152(b).
The Court of Claims failed to
come to grips with petitioner's contention
that although he felt the Court had been
misled into its erroneous judgment because
of fraud on the court, this was not the
issue. The issue was that the judgment
rendered was an illegal, null, and void
judgment and the Court did not have juris-
dictional authority to render such a judg-
ment, and that such judgment was against
public policy and denied due process.
Petitioner's independent action
was and is an attack upon the Judgment.
The petitioner had and has now standing to
ct
attack the judgment as being null and void
5.
when it has irreparably damaged him. He
was the legal representative and was privy
to the original suit in Ct. Cl. 231-68.
Additionally, rendering of a judgment in
clear violation of a Federal statute is
against public policy and public interest
and petitioner has standing as a citizen.
FACTS
During the March 27, 1964 earth-
quake in Alaska many public buildings were
heavily damaged and in need of repair.
The defendants (Alaska District, Corps of
Engineers) were authorized by other depart-
ments of government to repair these build-
ings under funds authorized by 42 USC
1855 e. which states in part that the
funds can be used only to repair and re-
construct to place a building into reason-
ably useable condition.
——
a eal Aho eee RR AS
6.
The 5040th Hospital at Elmen-
dorf Air Force Base was one of these
buildings. The repair work was done in
three phases. Work under Phases I and II
was performed by MB Contractors. The
contract under which this action is in-
volved was performed by Chris Berg, Inc.
under a contract titled, Repair of Hospi-
tal, Phase III, which was awarded in the
fall of 1964 and funding was obtained
through 42 JSC 1855 e. and made a part
of the contract. The painting work,
as part of the repair, was performed by
Warren Painting Co., Inc. under a subcon-
tract from Chris Berg Inc. Warren Paint-
ing Co. is a solely owned corporation,
owned by Clifford E. Warren (the petition-
er) and his wife June, and is their sole
source of income.
7.
By all common law and law set
down oy the United States Supreme Court
as to the interpretation of contracts, the
specifications and drawings issued with
the contract for the project would have
placed the howettak into not only a reas-
onably useable condition, but actually a
condition equal to or better than it had
been prior to the earthquake. When pro-
perly interpreted the specifications and
drawings conformed to and complied with
the restrictions of 42 USC 1855 e.
Having been authorized by var-
ious departments of government, the def-
endants awarded contracts and directed
the performance of work on many other
public buildings where contracts were
awarded and the work was performed under
42 USC 1855 e. funding. The defendants
ee
oor wey al ad
8.
had full knowledge of the restrictions and
limitations of the statute and kept within
those an and limitations on
those contracts.
The records of Ct. Cl. 231-68
clearly show that the defendants conspired
to violate the statute and did violate it
by directing Warren Painting Co., through
the prime contractor, to completely re-
paint and make like new the entire inter-
ior and exterior of the hospital, includ~-
ing many undamaged items and areas, and
including repainting of items and areas
which had been repaired (painted) under
Phases I and II.
The conspiracy to violate the
statute was testified to by one of the
defendant's witnesses as having taken
place at a conference held by the defen-
‘
9.
dants prior to issuing the Invitation for
Bids for Phase III of the repair to tre
5940th Hospital.
Chris Berg Inc. recuested a
Contracting Officer's Decision on the
petitioners claims, which was denied.
With authority granted by Chris Berg Inc.
and acting as legal representative for
that company, Warren Painting Co., through
its attorney, appealed the decision to
the Armed Services Board of Contract
Appeals and was awardod part of the claim,
but the major portions were denied. As
legal representative of Chris Berg Inc.,
and through its attorney, Dale 2. Martin,
Warren Painting Cc. furthered the appeal
to the “‘nited States Court of Claims to
recover the remaining $186,807.68 of the
Claim. The clains involved Only painting.
10.
As had been done in the appeal
to ASBCA, Warren's attorney brought to
the attention of the Court of Claims the
restrictions imposed by 2 USC 1855 e.,
as well as other common law principles as
to the interpretation of contracts.
The Court of Claims refused to
take judicial notice of 42 USC 1855 e.
and abnigated its judicial function by
refusing to interpret or apply 2 JSC
1855 e. in making its judgment.
From Moore's Federal Practice,-
Ond Ed., Volume 7, Page 512:
"an abnegation by the judge of
his judicial function, although
no actual fraud was perpetrated,
may well be a ‘legal' fraud by
him upon the judicial institutions."
Ensminger v Powers, 2 SC 63,
eet uu 66: ise
Kaw Valley Drainage v
Pacific R.R., 163 7
CCA 8th (1908)
Union
From
Page
ll.
Kelly and Another v Town of
Milan, ol red B68, Circ ct.
W.D. Tenn. (188)
State ex rel City of Terre
Haute v Kolsem et al., 29 NE 595,
S.Ct. Indiana (1891)
Scott _v Watkins, 61 Colo 2h,
157 Pac 4, S.Ct. Colo
(1916)
12A, J.S. Supreme Court Digests$
239:
"The meaning of a statute
must in the first instance
be sought in the language in
which the act is framed, and
if that is plain, and if the
law is within the constitution-
al authority of the law making
body which passed it,the sole
function of the courts is to
enforce it according to its
terms."
Caminetti v U.S., 22 US 70,
37 S Ct 192, 61 L Edlye
"NO court nas power to defeat
the intent of the legislature,
when couched in such clear and
express words as leave no doubt.
whether it was the intent of
the legislature."
Calder v Bull, 3 Dall 386,
1 Led 648
wah nis a Sed
le.
The Court of Claims disregarded
common law and that set down by the Su-
preme Court as to reading the contract as
a whole and giving proper meaning to
words and phrases, etc., etc. The Court
further abnigated its judicial function
by refusing to interpret and apply a vit-
al provision in the contract which made
the case for the plaintiff. Additionally
it changed the wording of a sentence in a
provision of the contract specifications
to create an ambiguity where none had
existed, called it a patent ambiguity,
and disallowed an important portion of
the claims.
The Court awarded a minor por-
tion of the claims in the amount of
$399.00 and disallowed the basic and maj-
or portions. In accepting the $890.90
13.
Chris Berg Inc. stipulated that the right
was reserved to appeal or pursue the
claim further.
On the advice of his attorney
that he could not afford to go further
with the claim, the petitioner himself
filed a timely Motion for Reconsideration
to the Court of Claims, still under au-
thority granted by Chris Berg Inc. The
Motion was not accepted for the reason
that petititioner was not represented by
counsel.
Petitioner then vainly sought
for several months to find an attorney
who would file an appeal on a contingent
fee basis. When one was finally found
and filed as attorney of record with the
court, the Court never acknowledged his
filing or acceptance as attorney of recor.
p .
STE A WELD ae SOR, Seem ee |
Yost alge at, BAL Rites
1.
Upon inauiry the petitioner was
told verbally by the Clerk of the Court
of Claims that the attorney had been
accepted as attorney of record and that
it was not necessary that they give him
notice of his acceptance.
A Motion for Reconsideration
Out of Time was then made but it was not
accepted by the Court.
Petitioner then attempted on
his own to petition for a writ of certio-
rari at the Supreme Court which was not
accepted because of being filed out of
time.
Further study by petitioner
brought to his attention that the judg=
ment made by the Court of Claims was null
and void and that there is no time limit
for attacking a void judgment and no
15.
specific time limit for bringing an ac-
tion for fraud on the court.
In Ct.Cl. 491-73 petitioner
filed his independent action in December
1973 and received the Court of Claims
decision as to his lack of standing and
lack of proof of actionable fraud sever-
al days subsecuent to the July 19, 1974
date of the Order.
Petitioner believes that he has
standing. ‘e believes that the Court of
Claims rendered an illegal, null, and
void judgment in Ct. Cl. 231-68 and that
it had no jurisdiction to render the
judgment, andthat the judgment is against
public policy. and denied due process.
Petitioner realizes that the
briefs he has presented to the Court of
Claims are not as concise as if written
by a professional, and that they are
ee : |
; 16.
rather lengthly; but if properly read
t ere is no cuestion as to petitioner's
attacking the judgment in Ct. Cl. 231-68
and that he was not bringing suit. Pet-
itioner has standing to maze such an
attack on the judgment rendered in Ct.Cl.
231-68 .
I. CONCLUSIONS OF LAW
- —ree
YOID “ JIDGM NT
l. The Judgment of the Court of
Claims in 231-6 is null and void.
Petitioner offers the following
case law which he .believes sustains nis
position. .
From J.S. Supreme Court Digest,
Lawyers Ed., Volume 6, Pages 294,
295:
9. Contracts created by or
entered into under the author-
ity of statutes are to be
interpreted according to the
language usad in each particul®
case to express the obligation
~
17.
assumed.
Florida C.R. Co. v Schutte,
103 US 1184
a. A statute that is within
the constitutional power of
Congress and in force when a
contract is made, is read
into the contract and becomes
a part of it.
Armour Packing Co. v JU. S.
209 US 56, 25 S Ct 25
also:
Per Thompson, J. Ogden v.
Saauders, 12 Wheat 213
Brown v Wiles, 20 How y2
Bronson v Kinzie, 1 How 311
U. S. ex rel. Von Hoffman v.
uincy, 4 Wall 535
Bulkley v J. S., 19 Wall 37
Southern Surety v Oklahoma,
2yl US 562, 36 S Ct 692
Toledo D.&B.R. v Hamilton
Toy US 296, 10 S Ct Sh6
Hendrickson v Apperson
2y5 US 105, 38 S Ct hy
m. Laws affecting either the
construction, enforcement, or
discharge of a contract, which
subsist at the time and place
of making the contract, and
where it is to be performed,
enter into and form a part of
it as fully as if they had been
expressly referred to or incor-
porated in its terms.
av one elcaneae gy
18.
Farmers & M. Bank v Federal
Reserve Bank, coe US 69,
S Ct » 30 ALR 635.
e. The laws in existence when
a contract is made, including
those which effect its validity,
construction, discharge, and
enforcement, enter into the
contract and form a part of it.
Connecticut Mut. L. Ins. v.
Cushman, 105 JS 51, 2 S.Ct.
236
From J.S. Supreme Court Digest,
Lawyers Ed., Volume 6, Page
328:
dd. Where the transaction, or
the contract, is declared void
because not in compliance with
express statutory or constitu-
tional provisions, a court of
eouity cannot interpret to give
validity to such transaction or
contract, or any part thereof.
Hedges v Dixon County,
125 US 182, 1k S Ct 71
rrom JU. S. Supreme Court Digest
Lawyers Ed. Volume 6= 8 58:
0. Whatever may be the words
of a contract, it is always
to be construed in the light
of the law then in force and
of the circumstances and condi-
19.
tions of the parties.
McCullough v Commonwealth of
Virginia, 172 US le,
19 * Ct 134
From U. S. Supreme Court Digest,
Lawyers Ed., Volume 6, Page 28:
ae It is the appropriate func-
tion of courts of justice to en-
force contracts according to the
lawful intent and understading
of the parties.
Bronson v Rodes, 7 Wall 229
From 17 Am Jur 2d, Contracts,
8 257. Law as part of, and as
controlling contract. Pages
65) thru 658:
\
It is a general rule that con-
tracting parties are presumed
to contract in reference‘to the
existing law; indeed, they are
presumed to have in mind all the
existing laws relating to the
contract, or to the subject
matter thereof. Thus, it is
commonly said that all existing
applicable or relevant and
valid statutes, ordinances,
regulations, and settled law
of the land at the time a con-
tract is made become a part of
it and must be read into it just
as if an express provision to
that effect were inserted there-
in.
PY Sap Marae SOARS US eS ES
20.
From Am Jur 50, Statutes,
Interpretation of Statutes:
If an affirmative statute, which
is introductory of a new law,
direct a thing to be done in 4
certain manner, that thing shall
not, even though there are no
negative words, be done in any
other manner, the mode prescrib-
ed by stattte for the exercise
of a power, must be adopted.
City Street Imp. Co. v.
Pearson, 161 Cal 640,
185 P 962, 20 ALR 1317
The primary rule of construction
of statutes is to ascertain and
declare the intention of the
legislature, and carry such
intention into effect.
US v Cooper Corp. 61 S Ct 72
JS v Palmer, 3 Theat 610
US v Anerican Truckin
310 US o3h, Son L ed 1345
The intention of the legislature
when discovered must prevail,
any rule of construction declar-
ed by previous acts to the con-
trary notwithstanding.
Brown v Barry, 3 Dall (US)
365
It is open to construction only
wnere the language used in the
statute recuires interpretation.
Newby v Yellin, 257 I11 ABR
_2l1.
Where the language of a statute
is plain and unambiguous and |
conveys a clear anddefinite mean-
ing, there is no occasion for
resorting to the rules of statu-
tory interpretation, and the -.-...:
court has no right to look for
or impose another meaning. In
the case of such unambiguity,
it is the established policy
of the courts to regard the
statute as meaning what it says,
and to avoid giving it any
other construction than that
which its words demand. The
plain and obvious meaning
of the language used is‘not
only the safest guide to follow
in construing it, but it has
been presumed conclusively
that the clear and explicit
terms of a statute expresses
the legislative intention, so
that such plain and obvious
provisions must control. _A_
plain and unambiguous statute
is to be applied, and not
interpreted, since such a
statute speaks for itself,
and any attempt to make it .
clearer, is a vain labor and
tends only to obscurity. In
accordance with these rules,
frequent references may be found
in judicial opinions to the
clear, definite, distinct,
evident, exact, explicit,
express, obvious, plain,
- - »
Owia oe eS |
22.
positive, simple, unambiguous,
uneouivocal, or unmistakable
language of the statutes under
consideration.
Osaka Shosen Kaisha Line v.
Ue Sey Ss Ct.
Je Se V Hill, 39 S Ct. 143
Adams Exp. Co. v Kentuc
35 8 Ct Bok
Yelvering v New York Trust
ch Ss Ct B06
U. S.~ v American Truckin
60 S Ct. 1059,
61 S Ct 53
U. S. v Standard Brewe
; , GO S Ct 139
_01d Colony Trust _v_ Comm. of
Int. Rev., 57 5 ct O13
From 12 Am Jur, Contracts:
§ 149. The general fight to
contract is subject to the
limitation that the agreement
must not be in violation of
the Federal or State Constitutions,
Federal or State statutes, some
ordinance of a city or town, or
some rule of the common law.
At no time in the history of the
common law have agreements
in violation of law been re-
garded as valid. Individuals
have never been allowed to
stipulate for inicuity. The
law which prohibits the end will
not lend its aid in promoting
the means designed to carry it
23.
into effect. It will not promote
in one form that which it declares
wrong in another. The whole doc-
trine relating to illegal agree-
ments is founded on a regard for
the public welfare. In fact, it
has been asserted that the maint--
enance of this doctrine is essential
to the preservation of the state.
ft may therefore be said to be a
fundamental principle of the law
of contracts that a contract must
have a lawful purpose and that
transactions in violation of law
cannot be made the foundation of
Vv contract. Moreover,
Ail agreements are subject to
the paramount power of the
sovereign.
8 150. An agreement which dis-
closes an intention to contravene
a statute in fraud of the public
or to the injury of private parties
savyors of a conspiracy and is
visious and unenforceable. If
such an intention is once found
to exist the law cannot presume
tnat the agreement is without
the effect intended by the
parties in order to confer
upon it the cuality of
enforceability.
It may be said that any agreement
act which is positively prohibited
by the rules of the common law
2h.
or by statute is illegal.
§ 209. The maxims "ex turpi
causa non oritur actio" and
"ex dolo malo non oritur actio",
founded as they are on sound ‘
morals, have for a long time been
applied by courts in the practical
administration of justice. Under
the doctrine expressed in these
maxims, it has been said that
no court will allow itself to
be made the instrument of
enforcing obligations alleged
to arise out of an agreement
or transaction whichis illegal.
In other words, no action can be
based on an illegal agreement.
The rule rests upon the broad
ground that no co W Ow
itself to be used when its
judgment will consummate an
act forbidden by law. It has its
foundation in the policy of dis-
couraging illegal and corrupt
agreements by refusing all
judicial aid to the parties to
them. This rule applies to any
agreement which is illegal,
immoral, or against public policy
or prohibited by public law, and
to any agreement which has_for ._,
its purpose the commission of a
crime or is forbidden by statute.
Such agreements cannot be enforced
by one party against the other,
either directly bv asking the
court to carry them into effect
25.
or indirectly by claiming
damages or compensation for
breach of them. An agreement
contrary to public policy
will not be enforced, though
in the particular instance
no actual injury may have
resulted to the public and
the parties thereto were not
conscious that they were doing
a thing which the lawdid
not approve. It has been
said that illegal agreements
are void and the courts will
not recognize rights as
springing therefrom. Thus, it
is said that agreements in
violation of public policy
are void.
$156. Where it appears that
the subject matter of an
agreement is intended to be
used for an unlawful purpose,
the court will refuse to
enforce it. While it is
true that a contract lawful in
itself cannot be rendered
unlawful by the act of a
third person in converting the
subject of the contract to an
unlawful purpose, but neverthe-
less, if an agreement apparent-
ly lawful is made with the view
of facilitating or encourging
the unlawful act of a third
person, is it unlawful.
26.
Moreover, agreements which,
though legal when standing
by themselves, are merely
steps intended for the
accomplishment of an illegal
object, will be declared
illegal. If the effect of
the agreement is to accom-
plish an unlawful purpose,
however, the agreement will
be declared illegal regardless
of the intention of the parties.
Indeed, the mere tendency of
an agreement to promote
unlawful acts may rater it
illegal as against the policy
of the law. A contract should
not be enforced where its
performance would make the
parties guilty of a crime.
§ 157. It is clear that the
courts will not recognize
or enforce, or hesitate to
condemn, contracts resting
upon an illegal consideration.
Illegal consideration consists
of any act or forbearance or
a promise to act or forbear
which is contrary to law or
public policy. It is suffic-
ient consideration to support
an agreement, and 2n agreement
founded upon it is illegal.
$159. An agreement which
cannot be performed without
27.
a violation of the law is illegal
and void.
$165. The well-established
general rule is that an agreement
wnich violates a provision of the
federal or a state constituion,
or of a constitutional statute,
or which cannot be performed
witnout violating such a provision,
is illegal and void. The same
principle extends to municipal
ordinances, for in this respect
there is no difference between
statutes and ordinances.
$162. It makes no difference
whether the prohibition or command
is expressed or implied. Even
where the statute does not, in
express terms, declare the act
unlawful, vet if it appears, from
a consideration of the terms
2 the legislation in cuestion,
that the legislative intent was
to declare tke act unlawful, an
agreement involving the doing of
such an act is illegal.
28.
26 The abnigation of judicial func-
tion by the Court of Claims in refusing to
interpret or apply a Federal statute which
is unambiguous is against public policy.
From 17 Am Jur 2d, Contracts, Pages
Syl thru 543:
8 179 What contracts are against
public policy, generally. --
In determining what contracts
are against public policy, 4 favorite
test is whether the parties have
stipulated for something inhibited by
the law or inimical to or inconsis-
tent with the public welfare. An
agreement is against public policy if
it is injurious to the interests
of the public, contravenes some
establisned interest of society,
violates some public statute, is
against good morals, tends to
interfere with the public welfare.
Page 55:
$181 Numerous acts are wrongful
because they are prohibited by
statute, and of course agreements
which involve those acts are
illegal. Illegality of contract
is likewise predicated in a proper
case upon illegality arising from
violation of public policy or
the principles of the common law.
29.
Accordingly, as developed in
succeding sections, illegal
agreements include those which
tend to promote immoral,
criminal, or tortious acts,
fraud or deception, breach of
trust or contract, oppression
and injustice.
From 12 Am Jur, Contracts:
8167. Liberty of contract is sub-
ject to the limitation that the
agreement must not be against
public policy.
It is a general rule that
agreements against public policy
are illegal ani void. Under the
principles relating to the doctrine
of public policy, as applied to
the law of contracts, courts of
justice will not recognize or uphold
any transaction which, in its object,
operation, or tendency, is calcula-
ted to be prejudicial to the public
welfare, to sound movality, or to
civic honesty.
An agreement is against
public policy if it is injurious
to the interests of the public,
contravenes some established
interest of society, violates some
public statute, is against good
morals, tends to interfere with
the public welfare or safety.
Pr Sconenrre tT |
YEN Beth
Ot
wel et ue ee Babee?
39.
$168. Agreements are against
public policy when they tend to
injustice or oppression, restraint
° erty and natural or legal right
or to the obstruction of justice,
or to the violation of a statute.
~
§ 178 Any agreement to wrong or
defraud a third person or an agree-
ment which involves a fraud on the
rights or others or which has an
obvious tendency to encourage fraud
is illegal because contrary to
public policy. Parties are not
only bound to act fairly in their
dealings with each other, but they
are not to expect the aid of a court
fo enforce an agreement made with
the intent tnat it shall operate
as 2 fraud upon the private rights
and interests of tnird persons. -
An agreement which is fraudulent
as to third persons will not be,
enforced.
8 2190. Agreements and acts that
are absolutely void are agreements
to do an illegal act or omit 2
legal public duty, (or) agreements
in a form forbidden by law. \
where the agreement is, in
substance or in essential form,
illegal, neither pirty can ratify
it, because the wrong done is
against the state and the state
only can forgive it. To permit
\
31.
the subsequent ratification of
such agreement or to consider it
the sufficient and legal basis of
a subsequent promise would be a
manifest inconsistency which
would annul the rule and enable
the parties, by an easy expedient,
to evade laws based upon considera-
tion of public policy. Under this
well-settled rule it would seem that
no action of the parties or their
assignees can so validate an illegal
agreement as to justify a court
in enforcing it where its illegality
appears. An attempted compromise
of a claim based on such an
agreement, whether before or after
institution of action thereon, would
be simply an act of the parties
i1ooking to the complete or partial
ratification of the illegal aggre-
ment, which could in no way affect
the power of the court to refuse
to allow itself to be used as the
instrument for its enforcement.
$17). As a settled general rule,
agreements or contracts against
public policy are illegal and void.
An agreement or contract made in
violation of established public
policy is not binding and will not
be enforced.
Inder the principles relat-
ing to the doctrine of public policy,
as applied to the law of contracts,
oP
32.
courts of justice will not recog--
nize or uphold any transaction
which, in its object, cperation,
or tendency, is calculated to be
prejudicial to the public welfare,
to sound morality, or to civic
honesty. It is not necessary to
have a statute to prohibit 4
contract which is against public
policy; in such a case, public
policy itself prohibits it.
The basis of the rule that
contracts in contravention of pub-
lic policy are not enforceable is
that no one can rightfully do that
which tends to injure the public
or is detrimental to the public
good.
8 176. A contract which contravenes
the public policy as expressed in
the laws of the United States is
unenforceable.
$179. In determining what contracts
are against public policy, 4 favor-
ite test is whether the parties
have stipulated for something in-
hibited by the law or inimical to
or inconsistent with the public
welfare. An agreement is against
public policy if it is injurious
to the interests of the public,
contravenes some established in-
terest of society, violates some
public statute, is against good
morals, tends to interfere with
33.
the public welfare or safety.
For a particular under-
taking to be against public policy,
actual en need not be shown;
s enoug! e potentia ies
for harm are present.
§ 185. A contract will generally
be held void and unenforceable
where the object of the parties
is to perpetrate a fraud upon a
third person or upon the public.
Thus, any agreement to wrong or
defraud a third person or an agree-
ment which involves a fraud on the
rights of others or which has an
obvious tendency to encourage
fraud is illegal because contrary
te public policy. Parties are
not only bound to act fairly in
their dealings with each other,
but they are not to expect the
aid of a court to enforce an
agreement made with the intent
that it shall operate as a fraud
upon the private rights and
interests of third persons.
Petitioner urges the Court to
review the applicable case law concerning
the above.
~ anvcdentast
34.
3-6 The Judgment is void because
the Court of Claims abnigated its judicial
function and refused to interpret or apply
a Federal statute and failed to take into
consideration common law such as:
"existing law being a part of
a contract"
Connecticut Mut. L Ins v
Cushman, 2 S Ct 23
Farmers & M. Bank v
Fed. Res. Bank, 43 S Ct 661
Armour Packi vy U. So.
268 S Ct 25
Southern Surety v Oklahoma
36 S Ct 692
Toledo D. & B.R. v Hamilton
10 S Ct 546
Hendrickson v Apperson
38 Ss Ct nn
"avoiding injustice or
illegality"
Hobbs v McLean, 6 S Ct 870
From 17 Am Jur ed, gs 156,
A slightly different way of
expressing the rule is that
illegal agreements include
those in violation of some
35.
prohibitive statute, of the
express rules of the common
law, or of public policy.
It may be said that any agree-
ment which involves the doing
of an act which is positively
prohibited by the rules of the
common law or by statute is
illegal.
"change of contract by con-
struction"
Harrison v Fortlage, 16 S Ct 4,88
Calmar Se:. Corp. v Scott
13 & Ct 739
Memphis & L.R.R. v Southern Exp.
"Consideration of subject
matter and circumstances"
McCullough v Comm. of Virginia
19 S$ Ct 134
sand Piltration V Cowardin,
29 S Ct 509
"controlling effect of intention"
ronson v Rodes, 7 Wall 229
Spee v_ Von Lingen, 5 S Ct 346
J.S. v Choctaw Nation,
2, 2 CE 189
SEerretcee tor cr |
36.
"practical construction by
parties"
Brooklyn L.Ins. v Dutcher
4S US 269
Philadelphia W & B R Co v
Trimble, 10 Wall 367
"construing as a whole, giving
effect to all parts"
Green Cty v Quinlan, 29 S Ct 162
Burdon Central Sugar Ref. Co.
v_ Payne, S Ct 754
* Brown v Spilman, 15 S Ct 25
O'Brien v Miller, 18 S Ct 10
"effect of custom"
U. S. v de la Maza Arrendondo,
6 Pet 691
J. S. v Boisdore, 11 How63
Dunlap v Dunlap, 12 Wheat 57)
"meaning of language generally"
Trimble v Seattle, 35 S Ct 218
Green v Biddle, 5 Wheat 1
Salderon v Atlas SS, 18 S Ct
588
Treat v White, 21 S Ct 611
he Petitioner quotes from 16 Am
Jur 2d, Constitutional Law concerning
Gue process:
37.
8 490. Due process of law as
guaranteed by the llth Amendment
was defined in terms of the
equal protection of the laws --
that is, as being secured by
laws operating on all alike,
and not subjecting e indivi-
dual to the arbitrary exercise
of the powers of government,
unrestrained by the established
principles of private right and
distributive justice.
§ 542. The guaranty of due
process found in the Sth Amend-
ment of the Federal Constitution
declares that no person shall
"be deprived of life, liberty,
or property without due process
of law". The lth Keontanat
declares that no state shall
"deprive any person of life,
liberty, or property without due
process of law",
§ Su4. The fundamental guaranty
of due process is absolute, and
not merely relative.
By reason of this guar-
anty it has been stated as a
general principle that everyone
is entitled to the protection
of those fundamental principles
of liberty and justice which
lie at the basis of all our
civil and political institutions
38.
and have long been recognized
under the common-law system...
Moreover, the vague
contures of due process do
not leave judges at large, and
they may not draw on their
merel ersonal and private
motions an isregard the
Timits that bind them in
their judicial function.
The protection extends
to rights, in the broadest
sense of the term. In qdeter-
mining whether the recuirement
has been observed, regard must
be had to substance rather
than to form, for the mere
form of the proceeding cannot
convert the process used into
due process of law, if the
necessary result is illegall
to deprive a person or Ris
property.cece-.
$545. It has been said that
the term "due process of law"
asserts a fundamental principle
of justice, rather than a
specific rule of law....
If the proceeding is
found to be suitable or admiss-
ible in the special case, it
will be adjudged to be due
process of law; but if, on the
other hand, it is found to be
39.
arbitrar oppressive, and
unjust, + may be dectared to
Be not due, process of law.
§ 551. An act which effects
only, and exhausts itself
upon, a particular person or
his rights and privileges, and
has no relation to the
community in general, is rather
a sentence than a law and one
which condemns without a
hearing.
§ 553. It has, been intimated,
however, that if the error is
gross and obvious, coming close
to the boundary of arbibrary
action, there may be a violation
of the guaranty.
8 554. The purpose of this
clause is to exclude arbitrary
power from every branch oi the
government.
The object of the con-
stitutional guaranty of due
process of law is‘to preserve
personal and property rights
against the arbitrary action
of public officials. It has
been asserted that the guaranty
snould be enforced,even against
persons assuming to act under
the authority of the government.
«
ee ee a
ad
—
coh MONS eSNG
ct aed
Oo.
The guaranty is violated when-
ever any person, by virtue of
public position under the
federal or state government,
deprives another of any right
protected by that amendment.
The guaranty may be violated
by unfairness or corruption
of officers. Hence, it is re-
cognized that administrative
officers, when executing the
provisions of a statute involv-
ing the liberty of persons,
have no —— to disregard the
fundamental principles tha
inhere in due process 0 aw.
$ 556. It is recognized that
the United States cannot inter-
fere with private rights, ex-
cept for legitimate govern-
mental pruposes. Nor can the
Federal government or any
agencies set up by Congress
for the government of its
tepritory, violate the guaranty
of due process.
S$ 565. It was a maxim of the
common law that "no may should
be punished without an oppor-
tunity of being heard". Hence
no one may be legally divested
of his property unless he is
allowed a hearing before an
impartial tribunal, where he
may contest the claim set up
kl.
against him, and be allowed
to meet it on the law and
facts and show if he can thut
it is unfounded. Ae must be
given his "day in court".
§ 572. The proceeding or
hearing recuisite to due pro-
cess must be appropriate, fair,
adecuate, and such as is
practicable and reasonable
in the particular case.
The cases preeeed upon
the theory that given a court
of justice which nas juris-
diction and acts not arbitrarily
but in conformity with a
general law, upon evidence,....
8 575. Due process of law
protects against arbitrary
action, consecuently, arbitrary
action by the tribunal in the
Searing OF a cause or in its
order violates due process.
What is such arbitrary action
depends upon the facts of the
case, although no violation
is involved in action which
is merely erroneous.
The Judgment is void because of
infringment on Petitioner's Constitutional
rights. Petitioner has been irreparably
damaged because of the actions leading to
Wee es |
42.
the void Judgment and his Constitutional
rights to contract and earn a living as 4
contractor have been impaired because if
Petitioner attempted to bid and perform
work in conformity with the Judgment he
would be unable to obtain contracts.
Should he bid and perform work
as he and others in the construction in-
dustry always have, he will be in continu-
ous jeopardy in that an uninformed or
arbitrary contracting officer might use
the Court of Claims Judgment in 231-68
to direct and reauire work to be performed
beyond the requirements of the plans and
specifications as they are interpreted by
the common law and as they nave been inter-
preted by otner agencies of government and
contract appeal boards.
Prom 16 Am Jur 2d:
43.
§ 359. Personal liberty also
includes the right of the
citizen to be free to use his
faculties in all lawful ways;
to live and work where he will;
to earn his livelihood by any
lawful calling; to pursue any
livelihood or vocation, and
for that purpose to enter into
all contracts which may be
proper, necessary, and essential
to his carrying out these
purposes to a successful
conclusion.
§ 373. Although the term
"freedom of contract" does not
appear in the Constitution,
the right to enter into a
contract with some exceptions,
is a liberty which falls within
the protection of the due pro-
cess clause of the llth and Sth
Amendments to the Constitution.
In general it may be
said that the privilege of
contracting is both a liberty
and a property right.
The United States
Supreme Court has stated that
freedom to contract is the
essence of freedom from undue
restraint on the right to
contract.
caawii alin migauipctnde ties ESS 3
Kye
The right of liberty
of contract is inherent and
inalienable. It belongs to
every citizen by the law of
the land; every man has the
right freely to deal, or to
refuse to deal, withhis fellow
men.
The right of pursuing
an ordinary calling or trade
and of accuiring, holding, and
selling property embraces tne
right to make all proper con-
tracts in relation thereto.
$551. An act which effects
only, and exhausts itself upon,
a particular person or his
rights and privileges, and
has no relation to the community
in general, is rather a sentence
than a law and one which con-
derns without a hearing.
5. The Court of Claims, being an
inferior court, created by the Congress
does not nave jurisdiction to render
sudgments in violation of Federal statutes,
public policy, common law, or to deny due
process by making arbitrary decisions in
45.
violation of constitutional rights. The
Court of Claims is bound by the same prin-
ciples which bind other courts of the Am-
erican judicial system.
Petitioner offers the following
case law relative to those restrictions:
From 59 Am Jur, Statutes:
§ 222. Federal legislation can-
not be construed without regard
to the implications of the dual
system of government in the Un-
ited States.
A. B. Kirschbaum v Walling,
62 S 6t 1116 ©
§ 228. As a result of constitu-
tional provisions distributing
the powers of government among
three departments, the legisla-
tive, executive, and judicial,
. courts have no legislative auth-
te ority and should avoid judicial
legislation, a usurpation of
legislative powers, or an entry
into the legislative field. It
is not within the province of
a court in the course of con-
struction of a statute to make
or supervise legisbatiah. .A
statute may not, under the guise
ees
hee lee Ra OR eae
46.
of interpretation, be modified,
revised, amended, distorted,
remodeled, or rewritten, or
given a construction of which
its words are not susceptible,
or which is repugnant to its
terms. The terms of the statute
may not be disre arded. To
depart rrom the meaning express-
ed by the words of a statute,
is to alter it, and is not
construction, but legislation.
Rice v Se Roll & Panel
99 NC CL, 154 SE 69
= 230. In the construction of
a statute, the general rule is
that the court may write no
limitations therein. As vari-
abridged: Hence, generat words
are to
ve a general operation
where the manifest intention of
the legislature affords no
ground for qualifying or re-
straining then..
Yu Con v Trinidad
6 S ct 619
Herzog v Mittleman
65 Poca 3e4
Norwood Morris Plan Co v
McCarthy, 4 NE ed 459
Butte Miners v_ Butte,
194 P 149
6.
attacking
47.
Prom 12A, J.S. Supreme Court
Digest:
Page 239:
No court has power to defeat the
intent of the le islature, when
couched in such clear and ex-
press words as leave no doubt
whether it was the intent of
the legislature.
Calder v Bull, 3 Dall 386,
Page 231:
A court may not reject a con-
struction clear recuired b
statuto Tangua eC, sipetiatly
where a ai?Petent son struction
purports to raise a serious
constitutional cuestion as to
the role of the judiciary under
the doctrine of separation of
powers.
Yllman v U.S., 76 S Ct 97
There is no time limit for
a Judgment as void.
Misco Leasing v Vaughn,
50 F od 257
Taft _v Donellan Jerome
07 F oa 507
Bookout v Beck, 254 F 2d 823
Austin v Smith, 312 F 2d 337
J. S. v Melichar, D.C. Wis. 1972
Ruddies v Auburn Spark Plu
261 F.Supp. iF
8.
State v Romero, 415 P 2d 837
Judgment was vacated as void
30 years after entry:
Crosby v Bradstreet Co., C.A. 2d
° F 2 » cert.
denied 83 S.Ct. 1300
Delay of 22 years did not bar
relief:
J. 5. v Williams, D.C. Ark 1952,
109 F.Supp. 1,56
Laches of a party cannot cure 4a
judgment that is so defective
as to be void; laches cannot
infuse the judgment with life:
Austin v Smith (CA 2d, 1962)
312 F 2d 337
See Maraquette Corp. v Priester
(ED SC 196), 34 F Supp 799,
9 FR Serv2d 60 b.29, Case 13
Ruddies v Auburn Spark Plu
(SD NY 1966) 261 F Supp ze,
10 FR Serv2d 60b.26, Case 1;
SEC v Dumont Corp. (SD NY 1969)
US FRD 342, 13 FR Served he.l,
Case l.
See also People v Miller (1939)
339 I11 9 » 171 NE 672;
State Bank of Prairie du Rocher
v. Brown (1931) 263 111 App 312,
(The court stated, "The judgment,
being void, was subject to attack
by motion, irrespective of the
lapse of time; hence, appellants
49.
are not precluded, by laches,
from moving to set same aside.")
In_ re Borek (D NJ 1960) 180 PF.
Supp mere passage of time
cannot give validity to a void
judgment ).
The theory underlying the concept
of a void judgment is that it is
legally ineffective - a legal
nullity; and may be vacated by
the court which rendered it at
any time.
US_v Sotis (CCA7th, 1942)
F 2d 783, 787
US v Milana (Ed Mich 1957)
148 F Supp 152 provided not-
ice has been given of such
contemplated action, and an
opportunity to be heard to
the party adversely affected.
Absence of jurisdiction of a
court rendering a judgment
constitutes sufficient ground
for its vacation by such court;
not only during the term at
which it is rendered, but also
after such term or after expira-
tion of a statutory limitation
of time for applications to have
judgments vacated. It has been
held proper to exercise the
authority either before or after
the expiration of the time to
appeal from the judgment.
ee eS
50.
Bernard v Idaho Bank & Trust,
° ’
Flowers v King, 145 NC 23,
Sunderland v Braun Packing,
A l2
Smead v Sutherland, 111 A 2d 335
Macario v Alaska Gastineau Mine
165 P 73
The granting of an application
to open or vacate a judgment on
the ground of absence of juris-
diction has been regarded as a
matter of right, rather than 3
matter of discretion.
Goldstein v Peter Fox Sons
135 NW 150 “s
By virtue of an express saving
clause in Rule 60(b), the time
limits it states are not applic-
able to an independent action
attacking the judgment. There
is no time limit on when an
independent action may be
brought.
In re Casco Chem. Co.
335 F od 6L5, 652
west Virginia Oil & Gas v George
E. Breece Lumber 213 F od 70e
Fiske v Buder, 1s F 2d 841
Dunham v lst Nat Bk in Sioux Falls
1972, 201 NW 2d 227, 230
Provision contained in the rule
recuiring relief for excusable
neglect to be sought within one
51.
year that the power of the court
to entertain an independent
action to relieve a party from
judgment, order, or proceeding
was not thereby limited, was
designed to preserve the tradi-
tional power of courts of equity
to relieve parties from unjust
judgments if warranted by ecuit-
a>5le principles when relief by
motion under this rule is barred
by a one year limitation.
Caputo v Globe Indem Co.
DoeCeoFRe 1966, Gi F.en.D. 239
II. CONCLUSIONS OF LAW
STANDING TO ATTACK JUDGMENT
Petitioner, Clifford E. Warren,
wnose only livelihood is derived from
Warren Painting Co., Inc., which is a
solely owned corporation owned by himsel?
and his wife, acted as legal representa-
tive far Chris Berg, Inc. in Ct. Cl.
231-68. In that case the matters before
the court were claims concerning painting
work only wnich had been directed to be.
ee |
52.
performed on Contract DA 95-507-ENG-2070. |
The petitioner alone was adversly affect=
ed and irreparably damaged by the judg-
In bringing the independent
action in Ct. Cl. 491-73 to attack the
judgment petitioner has not brought suit
but has recuested a voiding of the judg-
ment or a reversal of the judgment in
favor of Chris Berg Inc. Petitioner has
not sougit? "any award to be made directly
to himself.
Petitioner believes that since
he was the legal representative and privy
to the action in Ct. Cl. 231-68 and has
been irreparably damaged by that judgment
that he has a right to bring an indepen-
jJent action to attack the judgment as
53.
.
Petitioner feels he is entitled
to bring the independent action as a cit-
izen in that the Court of Claims refused
to interpret or to apply a Federal stat-
ute in arriving at the judgment, defied
common law and that set down by the Su-
preme Court as to the interpretation of
contracts, and by such arbitrary judgment
denied due process and violated provis-
ions of the Fifth and Fourteenth Amend-
ments of the Federal Constitution.
Petitioner cites case law as
follows:
From 14 Am Jur 2d, Page 808:
§ 31. Parties; who may
institute proceeding.
Generally, only a party
to the proceeding sought to be
reviewed, or a person directly
affected by it, can prosecute
a writ of certiorari. One who
appears as an actor in a liti-
gation or proceeding, claiming
~
eee. ace Neen | Say Sn eee ec yo |
54.
or asserting an interest in the
subject matter, is a party, al-
though he may have failed to
file a written pleading. In
other words, if the petitioner
for the writ SSeS
substance, altho £ not in
form, he may have the writ. If
a person not a party to the
proceeding seeks to use thewrit
he must show that the decision
sought to be reviewed is direc-
ted against him or his property,
in the sense that the enforce-
ment of the decision would
involve special, immediate, and
direct injury to his interests.
In the matter to be re-
viewed is one which affects
the public generally, an_indiv-
idual citizen may ordinari
obtain the writ. The writ will
{issue for the redress or pre-
vention of public wrongs by
public bodies and officers
whose official sphere is con-
fined to some political divi-
sion of the state, whenever
the petitioner is one of the
class of persons most directly
affected in their enjoyment of
public rights and the public
convenience will be subserved
by the desired remedy.
55.
The rule (152 (b) or 60 (b)O
allows relief from a judgment
to be given to "a party or his
legal representative." This
allows one who is in privity
with a party to move under the
rule.
In re Casco Chem. Co.
C.A.5th, 196, 335 Fed 645
erton v lst Nat Bk & Tr.
CeAe 10GB, 291 Fed bbe
Wright v Cty Sch. Bd.
D.C.Va. 1555. 309 F. Supp.
671
The controlling principle has
been clearly stated by Chief
Judge Lewis for the 16th Cir-
cuit: A ‘legal representative'
under the rule is one who by
operation of law is tantamount
to a party in relationship to
the matter involved in the
principal action.
Western Steel Erection v US,
C.A.10th, 1970, 42h Fed
737, 739
Blacks Law Dictionary defines:
Privies: Those who are par-
takers or have an interest in
any action or thing, or any
relation to another.
Harrington v Harrington
3 Miss (2 How.) 701, (ey;
56.
Brown v Fidelty Union Tr.
126 NJ Eq 06, 9 A ed 31l,
326
Hameli v Sejpek, 274 NYS 875,
152 Mise 799
Privy: A person who is in pri-
vity with another. One who is
a partaker or has a part or
interest in any action, matter,
or thing.
Legal Representation: The term
in its broadest sense means one
who stands in place of, and
represents the interests of,
another.
Nudelman v Thimbles Inc.
225 Mo App 553, 40 SW 2d
475, 477
Yarrey v Farmers All. Ins.
134 Kan 5, 4 P od 460,461
It is by no means true that the
right to move for the modifi-
cation or vacation of a judg-
ment is strictly limited to
parties to the action; there
are cases in which the right of
a person not a party to the re-
cord to have a judgment opened
or vacated has been recognized.
This is particularly true in
the case of persons in privity
with parties to the action.
There are also cases in which
it is declared broadly that
the vacation of a particular
57.
judgment may be obtained by any
interested party or person aff-
ecte vy the ju ent.
—— Vv ie om Kanl23,
3 P 2d 110
Reynolds v Lloyd Cotton Mills,
99 SE cho
Chappel v Cha 1, 12 NY 215,
Am Dec 49
Leslie v Gibson, 103 P 115
Smith v Coucher (DC) 9 Alaska
739
Continental Gin v Arnold
Weber v Weber, 140 NW 1052
It sometimes happens that out
of the same transaction there
arise rights both in personam
and in rem. In such case, a
judgment in rem does not merge
the cause of action in personam
on the original claim, and does
not constitute a bar to an
action tnereon. This rule is
based upon a difference not
only in parties, but also jp
e2a1Ses of ac tion.
Taylor v Continental Suppl
16 F od 578
Strand v Halverson, 264 NW 26
Swedish American Wat Bk. v
Dickinson Co., 69 Nw
See 3 Freeman, Judgments
5th ed., Pg 3139 g 1529.
= noe alle. sibarinseens ie anid > oie, Ue
58.
Blacks Law Dictionary defines:
Void Judgment: One which has
no legal force or effect, in-
validity of which may be asser-
ted by any person whose rights
are attacker at any time and
at any piace pe Se)
erally. Reynolds v Volunteer
ate Life Ins Co., Tex.Civ.App
da 9 2. One which
from its inception is and for-
ever continues to be absolutely
null, without legal efficacy,
_ Aneffectual to bind parties
or support a right, of no
legal force and effect what-
ever, and incapable of confirm-
ation, ratification, or enforc-
ment in any manner or to any
degree. Ex parte Myers,
121 Neb. IVs a , 1h.
Every man has a right to insist
that no_provision of any law
shall be violated so as to work
peculiar harm to him
Wheeler-Stenzel v Nat. Win-
dow Glass Jobbers, (CCA 34)
15e 7 74h
The right to maintain an action
for violation of the statute
has been regarded as based upon
the principle that duties and
pignts are correlative, and
that where a duty is imposed,
there must be 4 right to have
~59.
it performed.
Anno: 9 LRA(NS) 388.
An action for the violation of
a statutory duty is generally
maintainable by any person in-
jured thereby, who suffers
a special damage therefron,
and who is of a class entitled
to take advantage of the law.
Zajikowski v American Steel &
Wire (CCA 6th), 255 F 9
Conway v Monidah Trust,
5 P 26
Lepard v Michigan C.R. Co.,
30 NW
However, the fact that certain
classes of persons were inten-
ded to be primarily protected
by the discharge of a statuto-
ry duty will not necessarily
prevent others, neither named
nor intended as primary bene-
ficiaries, from maintaining
an action to recover for in-
Juries caused by the violation
of such legislative comment.
Atchison, T.&S.F.R. v Reesman
60 F 370
Sands v Linch, 182 sw 561
Jnder California law, where one
person owns all stock of a
corporation and uses the corp-
oration as a mere conduit for
the transaction of his own
Se a en tn a SS
60.
business, the corporation is
regarded as his "alter ego".
Imperial Pater & Color Corp.
vs sell, Ilh F od 49,
reversed 61 S Ct 904, 313
US 215, 85 L.Ed. 1293, re]
hearing denied 61 S.Ct. 1107
313 US 600, 85 L.Ed. 1552.
Corporate entity is disregarded
where not to do so would defeat
public convenience, work a
fraud, or justify a wrong.
Great Northern Co-op v Bowles
16 F od 269
The corporate form cannot be
used to evade or defeat public
policy or lawful ends of legis-
lation, and courts will tear
away the corporate veil when-
ever it is used to evade a
statute or modify its intent.
7.5. v dudgins-Dize, %3 F.
Supp. 593-
In Plaintiff's Motion to Deny
Defendant's Motion to Dismiss, Cts Cle
91-74, plaintiff stated on Page 16:
"Again, plaintiff's Motion
4s not a claim or suit against
the Government but is a Motion
to set aside or void the judg-
ment in Ct.Cl. 231-68.
61.
In plaintiff's Supplement to
Cross Motion to Deny Defendant's Motion
to Dismiss, Ct. Cl. 491-73, plaintirr
Stated on Page 2:
"Plaintiff's independent action,
while labeled as fraud upon the
court, is not intended to be
limited to that subject only; but
for any other relief indicated
in FRCP 60 (b)(4) or (b)(6) or
any other grounds available by
independent action for the sett-
ing aside, reversing, or voiding
the judgment in Ct. Cl. 231-68.
Other reasons being (but not
limited to) Constitutional viol-
ations and jurisdiction of the
Court to render a judgment in
violation of a federal statute,
void judgment, and abnegation of
judicial function."
In Plaintiff's Reply to Defend-
art's Reply Brief, Ct.Cl. 491-73, plain-
tiff stated on Pages 3 and k:
"Fraud upon the Court has only
been used on the theory that the
necessity for the attack on the
judgment was caused by fraud on
the coubt by the defendant. If
the Court disallows the charge
62.
of fraud upon the court, the judg-
ment is still attacked for other
reasons. Plaintiff has made this
perfectly clear in his brief.
It is not necessary that the deci-
sion of the Court in this matter
be based on fraud upon the court.
Plaintiff's petition is grounded
upon Rule 152 b. which is the same
as FRCP 60 b. which states, “any
otner reason justifying relief
from the operation of a judgment';
and on the savings clause which
States, "This rule does not limit
the power of the Court to entertain
an independent action to relieve 4
party from judgment, order, or
proceeding, or to set aside a
judgment for fraud upon tre Court.”
Plaintiff repeats again, again, and
again, that this independent action
is not based only on fraud upon
the court.
The citations on pages 7, 54, and
55 of Plaintiff's Supplement to
"ross Motion to Deny Defendant's
“Motion to Dismiss for the label-
ing of the papers of the action
Aces not confine the Court to
stner relief for other reasons.
rleintif?? can only state again
that this is an indepencant action
sor he setting aside, reversing,
or voiding of tne jucgment, and
63.
is not, is not, is not, a "suit"
against the government."
And on Page 8:
"Plaintiff cannot see why defendant
cannot understand that plaintiff's
independent action is not based
solely on fraud upon the court,"
In plaintiff's Supplement to
Cross Motion to Deny Defendant's Motion
toe Dismiss, Ct. Cl. 491-73, plaintirr
stated on Pages 6 and 7: os
"In using fraud upon the cou:- as a
basis for the setting aside or rey-
ersing or voiding judgment on Ct.Cl.
231-66 the independent action was
predicated on the opinion that such
an erroneous and illegal judgment
was caused by fraud upon the Court
of Claims (a court of law, not
eouity) by the defendant. This was
not intended to restrict the action
from asserting other reasons for
the setting aside, reversing, or
voiding of the judgment. The label
attached to such a motion does not
restrict the Court from granting
relief under the Court of Claims
Rule 152 or FRCP 60 or by independent
action for other reasons,
nee tab’ S
, 6k.
Plaintiff brings to the attention
of the Court that he is not bound
by any label on his motion for
' yoiding, reversing, or ss ;
8,
aside judgment on Ct.0Dl. 231
and he seeks relief for any cause
the Court deems appropriate.”
Plaintiff then cited as
follows:
When an adverse party is not pre-
judiced, an independent action for
relief from judgment may be treated
as a motion for relief, and con-
versely a motion for relief may be
treated as the institution of an
independent action.
Bankers Mortgage v U.S, C.A.5th
9 » cert den-
ied 90 S.Ct. 2242, 399 US
927, 26 L.Ed.2da 793
And on Pages 54 and 55 plaintiff
stated:
While fraud on the court is one
pasis for voiding or setting aside
f judgment, in Ct.Cl. 231-68 there
are other bases for relief and
plaintiff has not limited himself
to any one of them.
On Page 407 of Moore's Federal
Practice 2nd Ed., Vol. 7, it is
stated:
65.
The mislabelling of a paper or a
proceeding to obtain relief from a
judgment is unimportant where the
adverse party is not prejudiced;
and the initiating paper may be trea-
ted as a mocion for relief under
60 (b).
In re Estate of Cremidas (D Alaska
1953) 14 PRD 15, 1% FR Serv 69 De
29, Case 3. (Petition for writ of .
coram nobis, which had been abolisned
treated as a motion under 60 (b);
US_v Wissahickon Tool Works (CA2d
2 ed P erv 58.5,
Case 1 (untimely motion made under
Rule 59 treated as a motion under
60 (b); Sebastiano v US (ND Onio 1951
103 F Supp 278, r erv 69b.29,
Case 2 (independent action treated
as a motion for relief under 60(b)(6)
aff'd (CA6th, 1952) 195 Fod 18&h.
For related discussion and further
citation see 60.18(8) nn 5,6;
60.27(1) n 323 and 60.38(3) in the
Same authority.
III COURT MAY ENTERTAIN ITS
OWN MOTIONS
On Page 13 of Plaintiff's Supp-_
lement to Cross Motion to Deny Defendant's
Motion to Dismiss, Ct. Cl. 491-73, plain-
66.
tiff brought to the attention of the
Tourt that it could entertain its own
motion and that it was not necessary to
entertain an objection from defendants.
The following case law was cited:
The court has power to act in the
interest of justice in an unusual
case in which its attention has
been directed to the necessity
for relief by means other than a
motion.
McDowell v Celebrezze
1962, 310 F 2d 13
Although a party may bring the
matter to the attention of the
court, this is not essential, and
the court may proceed on its own
motion.
Jniversal Oil Prods. v Root Ref.
19L6, 66 S.Ct. Lilo, 328 JS
575
Root Ref. v Universal Oil Prods.
CCA3d, 1948, 169 F 2d 514,
521-523, cert den. 69 S Ct 421,
335 US 912.
Martina Theatre v Schine Chain
CeAecd, 1960, 275 F aed 796
Kupferman v Conso. Research
Cohsea, LIles u59 F 2d 1072
C.A.5th,
There is no rigid time limitation
aes ye
when the court acts on its own
motion.
Root Refining v "nmiversal Oil Prod.
CONCLUSION
TO say the least the present
case, ct. Cl. 491-73 and the Judgment ren-
dered in Ct. Cl. 231-68 are unusual.
The judgment rendered in Ct. cl.
231-68 was arrived at by an abnigation of
judicial function in the Court's refusal
to interpret or apply a Federal statute,
apply common law of contract interpreta-
tion, refusal to interpret a provision
in the specifications in favor of the
plaintiff, and rewording of a sentence
sO create a patent ambiguity where none
had existed; all leading to transforming
2 legal contract into an illegal contract.
This illegal, void, and arbitrary judg-
ment was against public policy and a
denial of due process.
68.
Pa
Proof of the foregoing is con-
tained in the Court records of Ct. l.
231-68 and Ct.Cl. 491-73.
Petitioner is the only one
harmed or irreparably damaged by the
Judgment and he has standing to attack
the judgment as outlined in this petition
Petitioner re-emphasizes that he is not
entering suit, but_is attacking a_judg-
ment as null and void and seeking any
appropriate relief available.
Under Ct. Cl. Rule 152 (b) and
FRCP 60 (b), in particular (b)(4) and
(>)(6), petitioner has sought relief
within his capabilities and means from
the void judgment rendered in Ct.Cl.
231-68 but has been thwarted in every
effort to have the case reviewed.
It is, of cource, obvious to
69.
the honorable Court that petitioner is a
layman who perhaps has made legal and
technical errors in filing this petition.
He hopes he has not, but should he have
he respectfully recuests the Court's in-
Gulgence and its consideration of the
following case law:
"The Federal Rules of Civil Pro-
cedure are designed in large part
to get away from some of the old
procedural boobytraps which
common law pleaders could set to
prevent unsophisticated litigants
from ever having their day in
court. Rules of Civil Procedure
not only permit, but should as
nearly as possible guarantee,
that bonafide complaints be
carried to an adjudication on the
merits."
Surowitz v Hilton Hotels,
3953 US 363, 36 S Ct 845
WHEREFORE petitioner prays that
the Supreme Court of the United States will
grant this petition for writ of certiorari
and further grant relief by:
79.
‘
1. Setting aside the Order in
Ct.Cl. 491-73 granting defendant's Motion
to Dismiss because of plaintiff's lack of
standing.
2. Ordering the United States
Court of Claims to give petitioner stand-
ing in Ct.Cl. 491-73, or
3. That the Yonorable Supreme
Court will grant petitioner’« Motion or
entertain its own Motion to void, set
aside, or reverse the judgmént in Ct.Cl.
~
231-68.
~
4. Granting any further relief
deemed appropriate .by the Court.
~
Respectfully submitted,
&3 LI QQvere
c ford E. Warren
Petitioner
Pro se
Ken Wray's Print Shop, Inc.
Anchorage, Alaska
7.
“a
THE UNITED STATES COURT OF CLAIM®
No. 491-73
CLIPPORD fF. WARREN
THE UNITED STATES
Before DAVIS, Judge, Presiding, KUNZIG and BENNETT, Judges.
This “indenendent action" under Rule 152(b) to set
aside the decision in Chris Bers, Inc. v. United States,
197 Ct.Cl. 503, 455 F.2d 1037 (1°72), on the basis that
it was fraudulently arrived at, comes before the court on
defendant's motion to dismiss the petition. Upon consid-
eration of the briefs and without oral argument, the
court concludes that the motion should be granted since
plaintiff does not constitute the "real party in interest"
to this dispute. Merritt v. United States, 267 U.S. 338,
340-41 (1925); Putnam Mills Corp. v. United States, 202
Ct.cl. 1, __, 479 F.2d 1334, 1337 (1973). The court fur-
ther concludes that, in any case, nlaintiff's petition
fails to describe an actionable claim of fraud under Rule
152(b).
IT IS THEREFORE ORDERED that defendant's motion to
dismiss be and the same is granted and the petition is
dismissed.
BY THE COURT
wiei0m Pat Hae
Davis
Judge, Presiding
Tt. Akerman
——— oer
Jn the United States Court of Claims
No. 2a) 6s
(Decided) February Is. bv)
CHRIS BERG. ING. vy. THE UNITED STATES
Diddle Le. Martin, attorney of record, for plaintif.
Teay Goddard, with whom Was cLssx/stant Attorney Gereval
L. Patrick Gray 111, for defendant.
Before Cowrn. Chief Judge. Lanamonrn. Senior Judge.
Dvvis. Comins. SKELTON. Nicuobs. and Kasmiwa, Jiuduex.
uN PLAINTIFF MOTION AND DEFENDANT'S CROss-MOTION FOR
SUMMARY JUDGMENT
Pree Curtm: This case was referred to Trial Conuuis-
sioner Joseph Vo Colaianni with directions to prepare and tile
hs opinion on the issues of plamtils motion and defendant's
eross-motion for suiamary judgment under the order of
nm ference and Rule 166¢0e). The commissioner has done so im
anopinion and report filed on Mareh lO. 1971. wherein such
B, | beeyttest
isets as atre necessary to Clic opinion are set forth.
for review of the commissioner's opinion and recommenda
tiens was filed by plaintith defendant urged the court te
‘opt the commissioner's opinion and the ease has been <ab-
iaitted te the court oon oral argument of counsel and the
briefs of the parties, Since the court agrees with the opinion
and recommended conclusions of the trial commissioner, st
“erely adopts the same as hereinafter set forth, as the bass
for t= judgment in this case. Therefore. as te Ciaimes Pane
LED plaintiifs motion for suminary judgment is denied. de-
4°56 on2 --72
ae
ae i> steeds 2
Ech sed va aio dibeied bint tte Rae Sena babe
2
fendant’s cross-motion is granted and the petition is dis-
missed. As to Claim I], with respect to the painting of one
stairway and certain N.I.C. areas, plaintiff's motion for sum-
mary judgment is granted and defendant's cross-motion is
denied. Further proceedings as to this claim are stayed pur-
suant to Rule 167 for a period of 90 days to afford the parties
an opportunity to obtain an agency resolution of the amount
of equitable adjustment to which plaintiff is entitled.
OPINION OF COMMISSIONER
Conatannt, Commissioner: Plaintiff's claims arise out of a
January 12, 1965, contract with the Corps of Engineers for
the repair of earthquake caused damage to a hospital at
Elmendorf Air Force Base in Alaska. The claims are made
and presented for and on behalf of Warren Painting Com-
pany Ine. of Anchorage, Alaska, plaintiff's subcontractor.
Background Facts
On March 27, 1964, portions of Alaska were heavily
damaged by a severe earthquake. The multi-story, 4(4)-bed
Air Force Base Hospital, outside of Anchorage. Alaska. was
among the buildings that suffered extensive damage. The
damage was of such a nature and severity that it was neces-
sary to completely deactivate the hospital.
To enable repairs to be made to the hospital. and other
Alaskan facilities, emergency funds were made available by
the United States Government pursuant to Title 42 U.S.C.
§ 1855e. Because of the necessity that the hospitai be re-
activated as quickly as possible, a three-phase repair and
restoration program, under the auspices of the Alaska Dis-
trict of the Corps of Engineers, United States Army Engi-
neers, was decided upon.
A contract to conduct Phase I repair and restoration work
was negotiated between the United States Army Corps of
Engineers and M-B Contracting Company. The Phase I
work concentrated on the critical areas that needed immediate
attention to enable the most basic of hospital services to be
performed. The work on Phase I commenced shorily after
the earthquake and continued through May 15, 1964.
The Phase II repair and restoration contract was also
awarded to M-B Contracting Company, and work under this
3 \
contract commenced immediately after terminatio:. of Phase
I work and continued until late December 1004. The repair
and restoration work under Phase IT also concentrated on
the more essential and critical areas of the hospital.
The emergency repairs conducted during Phases I and II
were not only generally limited to the most critical of areas
in the hospital, but were also substantially of an incomplete
or temporary nature.
Furthermore, while the Phase I and ITI contracts were
primarily concerned with structural type repairs. the testi-
mony shows that painting to select areas also occurred. There
is no dispute that during April and early May 1964. clinical
laboratory areas, obstetric delivery areas, and surgical areas
were given a touch-up and one finish coat of paint. Similarly,
there is no question that just prior to Christmas day 1964.
during the Phase I] contract, the main lobby of the hospital
was painted in anticipation of holiday visitations.
The claims with which we are here concerned arose out of
contract No. DA 95-507-ENG-2070, awarded to plaintiff
for interior and exterior repair and rehabilitation work to be
~performed during Phase III. The $1,044.786? contract in-
cluded an estimate of $129,500 for the painting called for by
the contract. This painting estimate was based on the low job
basis bid of Warren Painting Company, Inc. (hereinafter
referred to as Warren) for Item 21 of the unit price schedule.
In turn, Warren’s bid ? breaks down into estimates of $113.000
for painting of the interior? and $16,500 for painting of the
exterior.
Plaintiff seeks equitable adjustments. by way of a standard
“Disputes” clause in the contract, for increased costs allegedly
occasioned by constructive changes.
Plaintiff originally requested a contracting officer's decision
with respect to five claims of compensation for extra painting
work performed on the Elmendorf Base Hospital. Four of
Ry subsequent modifications the amount was incressed to £4. 500,904 67
7Warren did net make a pre-award site investigation. and its bid was net
based on its own review of the plans and speeifiertions. Rather tr relied on
the ealenlations of ao professional quantity seller’ toe establish the area of
coverige called ter by the plans and spectfieations
TAs a result of controet mead fiections. and the Boards eqnitable ad ost
ment for the stippiing of interior surfaces, the final eost for the painting of
the interior comes te S109 316 63
$y, Pe ee ee
ee eee ha aaa
4
piamtutl’s claims were denied by the contracting officer's de-
cision of February 14, 1966. However, plaintiff's fifth cause
of action, which sought an equitable adjustment to the con-
tract price for the cost of painting built-in metal cabinets,
was not decided since the parties were attempting to settle
it through negotiations, By way of Modification No. 49 to
the contract, the parties on June 29, 1966, agreed to a contract
inerease of $11,800.26 for painting of the prefinished items
covered by plaintiff's fifth cause of action. On appeal, the
Armed: Services Board of Contract Appeals (hereinafter
referred to as Board) denied three of plaintiff's remaining
four claims, but sustained plaintiff's claim of $35,092.45 for
extra labor and material costs incurred for stippling of in-
terior walls and ceilings.*
Plaintiff seeks review of the Board's adverse determina-
tions. urging that the Board cominitted reversible errors
beth in its findings of fact and conclusions of law. In this
instance, the issues are presented by cross-motions for sum-
nuiry judgment and must be resolved in accordance with
Whnderlich Act standards.
The separate and distinct claims for equitable adjustments
«hich plaintiff wants this court to review are:
(I). The Board's determination that the application of a
till-eoat and finish coat on the entire building exterior was a
contract requirement :
IT) The Board's determination that additional work on
the interior of the building was a contract requirement : and
TIT) The Board's factual determination that plaintiff
Wee nor subjected to excessive workmanship standards.
The basis for each of plaintiff's claims is the “Changes”
claise of the contract. The Board in denying each of the
thove listed claims. heid that the work required of plain-
tiff. to both the interior and exterior, was clearly called for
hy the contract. and that the standards of the workmanship to
which plaintiff's snbeontractor was held did not substantially
exceed those warranted by the contract.
Fach of plaintiff's three claims are herein discussed
separately.
eS
* ASBCA No. 11426, 67-2 BCA € 6568,
“4S Stat. 81,41 U.S.¢. §§ 321-22 (1964).
}
2
CLAIM I
( "snels tof Le qr ments heelutivga fo hate / i094 ( ‘Way see yah
Masons Yo Nu tdees
The exterior of the multi-floor Elmendorf Plospital wa-
constructed of steel reinforced monotithie concrete column
and beams and conerete masonry uuits of monolithic concrete
weconerete blocks. The concrete columns and beams sustained
tensive damage ranging from gaping fissures te thousand=
of Lineal feet of hairline cracks. Similarly the coneret>
masonry units were also extensively damaged. Numerous
panels liad te be replaced either partially or ii theo en
tirety. and -ubetantially all were damaged by cracks.
From the outset the parties did not agree that the contract
required tle subcontractor te apply al cement-latex-filler
voat and one final coat to the entire exterior of the hospital.
Based on a multipronged argument. plaintiff contends that a
latex-tiller coat. the surface preparation. and a final fini~h
cout Were to be applied only to those exterior surfaces of the
heenital whieh were repaired.
On the other hand. defendant contends that the coutract
required the application of a latex-filler coat surface prey
aration to the entire hospital exterior, Defendant alo con-
tends. that the contract required the application of a tini=h
coat of paint to the entire hospital exterior.
At the root of this cause of action is the familiar que-tion
of interpretation of contract specifieations. This court: has
over the years consistently held the interpretation of contract
specifications to be a question of law. Accordingly. the
Board’s prior decision is not entitled to finality. but is oper
to judicial review by this court.” The contract provision= con:
sidered by the parties and the Board as being most relevant
to this cause of action are embodied in Section 10 of the
Technical Provisions.
SHeweser at lec-t ome of plaintiff's withesses testiied that the comtr
eatbed forthe opplicetion of a filler cost and finish cout of pont te the entire
feespital etteriae Ale several point contractors whe bhdion the canter feo.
fel that in their opinion the contreet cailed fer an application of a bates
filler at and ene tinal eoat of paint to the entire exterior of the Lespita
TNee nn SD eapra, 41 US § 222 11984)
* Vorrnsseon-Knudaen Co vy United States, 184 Ct ©) 661 G4. oeT Fost
suelo sgeee sg] (108s
6
Paragraph 10-01 “SCOPE :” provides:
This section covers ihe painting for building con-
struction that is itemized hereinafter under SUR-
FACES TO BE PAINTED and that is not specified in
other seetions,
The portion of paragraph 10-06). “CLEANING AND
PREPARATION OF SURFACES :” which is pertinent to
the question now being considered provides:
Concrete and masonry surfaces to be painted shall be
prepared by removing * * * old weathered paint. and
iV roughening to remove glaze. * * * Coment-latex
iller coat shall be applied to all exterior concrete and
luasonry surfaces,
In pertinent part, paragraph 10-08 “SURFACES TO BE
PAINTED” provides »s follows:
1. frevneral: Except as specified under SURFACES
NOT TO BE PAINTED, all existing and new surfaces
suall be painted. Existing surfaces shall be cleaned of
all dirt. grease, ete. and shall be painted one coat of the
final coat of paint required in the Painting Schedule for
the particular surface, Existing and new unpainted sur-
faces to be painted, shall receive the surface preparation
and treatment and the number and types of coatings
Spe ined, * * *
* * * * *
‘,. Pialuting Nehedule :
Ne surface Surface preparation Ist Coat 2nd Cost 3rd Coat
and pretreatment
Exterior monolithic Remove all foreign Cement- Exterio; (None)
rete, and con- matter, efflores- latex filler lates.
“te Masonry unit cence and loose coat.
“Ta0eS SV cept Particles, and
“ain roughen glazed
Surfaces.
7 * * * *
Finally, paragraph 10-09 “SURFACES NOT TO BE
PAINTED" lists the surfaces of the hospital exterior which
were excepted from the contract painting requirements, and
provides in pertinent part :
n. Ertevior Surfaces:
(1) Concrete walking surfaces
2) Aluminum
* * * * *
7
Basic to olaintiff’s position concerning the painting work
required by the contract, is its emphasis that we are con-
cerned with a contract which is fundamentally dedicated to
the repair of the Elmendorf Hospital. In support of its posi-
tion, plaintiff points eut that the contract was funded from
federal emergency appropri.tions authorized by ‘Title 42
Uus.C. sg 1s8dde. With the above as its foundation. plaistitl
unconvineingly argues that the areas to be painted must bear
some relationship to the need for repairs. This is necessary.
plaintul contends, since there was no expectation or cotent
that anything should be done to undamaged and previously
repaired surfaces, for by defination one cannot repair that
which is not damaged.
These contentions by plaintiff have the uneonvineing ring
of typieal “hindsight” or “after thought” type argaiments,
conceived Jong after the contraet with which we were con-
cerned was executed, and appear to have ne foundation in
fact.
Equally unmeritorions was plaintit!s areument that the
drawings were the only portion of the contract hat indicated
“where to paint.” and the specifeations. on the other hand.
disclose “how to paint.”
We agree with the conelusion reached by the Board which
~immarily dismissed this argument with the following <tate-
ment (67-2 BOA ©6568, p. 50. 4°55):
It is true that generaliy speaking this as a contract
for repairs and one of the work items is painting and in
that sense painting is an item of repair. The drawings.
however, on which so much reliance is placed. do not
purport to show where THAT work is to be dene al-
thongh they show in great detail where other work is te
in done. * ° *
* * * * *
Further underscoring the weakness of plaintilt’. argument
are the following contract examples where the work require
ments are shown in the draw ges :
(1) SECTION 14 BITUMINOUS PRIME COAT:
paragraph Tod "EXISTING PAVEMENT” Exrsting
pavement shall be removed ax shown in the cantimt draw:
fogs, * * * {Emphasis added. ]
(2) SECTION | CONCRETE: paragraph loot “RE-
Re Pd
geod
AN RY RACES
ees ee es
aK,
8
MOVAL WORK :" Existing conerete shall be remo eed
ihe ve fudieated on the draiwsvas, yoga e | Eanphiasis added. |
(3) SECTION 6 LUMBER AND INSULATION : para-
sraph 609%, Lustallation: Lumber shall be installed wher-
ever existing lumber is required to be removed. Installation
shall conform to the details Jadieated on the drawings. | Eam-
phasis added. ]
Contrasting these examples with the language of TP
1-01, we have no doubt that the specifications and not the
drawings were intended to tell the contractor “where te
paint” as well as “how to paint.”
In a eomsiderably more substantial argument. plaintit!
points out that the Board conceded that “This record doe-
furnish support for the appellant's contention that a filler
coat is intended to fill voids in new nasonry and is inappre-
priate for painted surfaces * * *," 9 Accordingly. plaintitt
argues that unless its interpretation of the contract is fol-
lowed. it will be forced to perform a useless and needless
task. Albeit for reasons importantly different from those of
the Board, we conclude. as did the Board. that the contract
specifications required the application of a Jatex-filler coat
and a finish coat to the entire exterior of the hospital. The
hasis for our conclusion follows,
The Government. with whom the Board agreed, pointed
out that TP 10-080, required the application of the filler
vont to all exterior concrete and masonry surfaces. The
Board, in support of this interpretation. relied npon the last
sentence of Technical Provision 10-064,. whieh provides:
* * * Cement-latex filler coat shall be applied to all
exterior concrete and masonry surfaces,
After a reading of TP 10-087. we agree with the Board's
observation that it lacks artistry in its expression. However.
even more important. a reading of TP 10-084, and the last
sentence of TP 10-064,, highlights the existence of a serious
Ineonsisteney on the face of the contract. The second sentence
of TP 100087, requires the application of one coat of the final
cout of paint to a// earisting surfiuces. Yor. the very nent
sentence Of that same provision requires that exlsft/ig sur-
°N 40 enpre at 20.476
9
faces amd wea unpainted surfaces to be painted shall receiv
the surface preparation and miumber of coats specitied-in FP
Woosh Pf Technical Provision 10-050, is i be internally eo
sistent. either the existing surfaces spoken cf in’ the twe
sentences are different. or the existing surfaces are the sate
ated the manber of coats specified. which is the language of
sentonee three. refers to the specifie requirement In sentence
tee that these surfaces are only to receive one final coat of
h
terty “existing surfaces” in these two sentences refers toe dif
review of tae contract precludes the possibility th it the
ferent surfaces. Therefore, the only reasonable interpretation
is the latrer one, However, this analysis necessarily leads te
tie unavoidable and clear conclusion that TP 100080. is in
Corect eonftfier with the last sentence of TP 100064.. whieh
reonires the application of a filler coat to the entire he jiital
extertor. We thus cannot agree with the Board's character:
yefen thar PP lecesa. is merely rediandant. but rather care
force dt to conelnde that it is clearly ambiguous when read in
hehtef TP laos, ;
Pho rule has Jong been established that a provision ina
ceotract Whielb ts umelear ane eapatble of beiner Interpreted
hy oat least twe reasonable ways. in ambiguous, Nae Sfp
Me apt Die Dot Con, United States, Ws Cb Ob aos.
BT. oe Bl seve sda S16 c1SGsy: Renae tv Macted Sores
IT SCLC OL Gk orb Ped soo. sed Croan),
Wien Technical Provision 1a-0sa. is read. as phontit
Higes us te da, with aneve on the purpose of the entire con
treeteand da atse taking inte consideration the questionable
yeeoefoaostittace preparation over previousty painted: ur
faces, plaintitl’s interpretation of the contract is reasonable,
her oped. elefendant’s interpretation avoids a direct
conor between PP be oosa. and PD lecoe and. at the sie
Dros agioes with the interpretation of at least one of pehsviny-
(>). tine tt
Soon withesses. Therefore. defendant's iiterpretation
pee tedseotathle one. Pienee, we comchide thats stbe=tantial
bod todsetcibie aiibronity exists in this contract.’
Ordinariive if an ambiguity cannot be cleared up by read-
ree the contract as a whole or looking to the cireumetanees
othe nm tonetr Oo \. EU mited Ktates, 1TH e's) CF Be. ce PO od 4
Re rer ne
10
attending the transaction and the conduct of the parties, the
wnliguity should be resolved against the party who drafted
the contract."* However, we have in the past cautioned
against resolving an ambiguity against the drafter of the
contract if the ambiguity is so patent and glaring that the
contractor was obligated to seek clarification. Nee J. 1. Jones
Constr. CoN. United States, ist Ct. Cl 1 1-1. 305 F.
Yd TS5. Tso0-7u0 C1968). See also Jefferson Constr. Co. v.
United Stites, 176 Ct. CL. 1365, 364 F. 2d 420 (1966). where
this court went beyond a mere finding of ambiguity in a
contract. and considered if a contractor has in certain cir-
cumetanees a duty to seek clarification of interpretative
problems. In conelnding that the contractor is in seme in-
stanecs tinder sueh a duty. we stated at pages 1568 60, 564
F. 2d at 425:
* * * While ambiguous contract: provisions are con-
strued against the author (Peter Wiewit Nous Co. Vv.
Vnited States, WO Ct. CL 390 (1947) ). and a contractor
is not usnally obligated to seek clarification of all inter-
prtative problems inhering in the contract terms, he
mist nevertheless inquire where the discrepancy. oni--
sion or conflict is obvious (Consolidated Eundr. Co. \.
Vo nlted States, WS Ct. Cl. PIG, PSO (1943): Jefferson Cay-
struction CoV. United States, 141 Ct. Cl. To. 80-01
(1960) 0. and most particularly so when a specification
provision affirmatively warns him of such possible dis-
erepaneies inthe plans (WO Enterprises Ine. Vinited
States, 85 Cte Ch 1,6. 325 FP. 2d S74. 876 (1965). and
collated authorities), or where a contract article requires
him te snbmit detected discrepancies to the contracting
officer for deeision (Beacon Construction Co, v. United
States WD Cte CL 1.6, 514 F.2d 501, 504 (1963)), * * *
Inthe otract at bar. the conflict between Technien! Pro-
mens Dos and 100064. is not what has been referred to
othe post as “obscure in nature”? but ean be more accu-
rately ret cred to as one which would have been “obvious”?
[he © reed pee ferentum See, for srsample, Teron Corp \ United
‘49re Yue e . 3% $89 FF 2h 22682 61940): wpe Paterprisxem, Ine. Towited
RP %e@, 3 ‘ Steele Bed S048 00): Peter Niewil Sane’ Co v Cnsted
Nfiptoe ioe oo [GTS
Tuto “° rong orp TC United Rates, 134 Ct. 5, BOS. 407, 508 F
SLi Bere 7 9t RK
titre a ee A) Lo ted Sforfom, Tse0 at OF FOOT. Jeoerg > |
ee « oe
1]
to any reasonable contractor experienced in the painting
trade. Indeed, a concurrent reading of both TP 10-067, and
TP 10-0sa. underscores and spotlights the patent and glaring
incompatability of the two provisions, and under these cir-
cumstances plaintiff had the burden to seek clarification of the
contract ambiguity. See L. Rosenman Corp. v. United Stites.
182 Ct. Cl. 586, 590, 390 F, 2d 711, 715-714 (1968). We need
not go on to establish if plaintiff actually knew of the obvious
conflict, since it is not the actual knowledge of the contractor.
but the obviousness of the discrepancy which imposes the
duty of inquiry. J. A. Jones Constr. Corp. v. United Stites,
supra.
Further warning to the plaintiff was provided by General
Provision No. 2 of the contract, which cautioned: “In case
of discrepancy either in figures, in the drawings. or in the
specifications. the matter shall be promptly submitted to the
Contracting Officer * * *.° This provision further warned
that “Any adjustment by the Contractor without such a
determination shall be at his own risk and expense.” In
RH Constr. Corp. v. United States, 192 Ct. Cl. 912, 920,
4us F. zd 1267, 1272-1273 (1970), a case having striking
similarity to the one at bar. this court dealt with a contract
having a similar type of provision. and unhesitatingly set
forth the consequences which face a contractor who clieose-
to proceed in the performance of a contract which contains
a patent ambiguity. Particularly, this court at page "20, 40s
F. zd'at 1272 stated:
Had the obvious omission timely been brought to de-
fendant’s attention, the dispute now in litigation would
have come to light. and would have been appropriately
resolved prior to the submission of bids. Having bridged
the gap in its own favor without consulting the contract-
ing officer prior to bidding, however, plaintiff i< not
entitled to recover here.
The obvious contract inconsisteney concerning the applica-
tion of the filler coat to either the entire hospital exterior
(TP 10-064.) or only to repaired, unpainted surfaces (TP
10-080.) was so glaring that plaintu? should have sought
elarifieation. Having failed to inquire. plaintiff cannot now
“bridge the crevasse in his own favor.” Beason Consty, CON.
Vnited States, WA Ct. Cl 1. 314 BF. 2d 501 (1965) 2 see also
12
I. A. Jones Constr. Cory. United Stater. supra. Accordingly,
plaintiff's claim for additional compensation for the appliea-
tion of the cement-latex filler, to the entire exterior concrete
and masonry surfaces is denied. The decision of the Board’as
to its ultimate determination on this issue is affirmed. \
Turning now to the second part of CLALM I, we consider
Whether plaintiff was required by the contract to place a final
coat of paint over the entire exterior concrete and masonry
~urfaces. The Board found that Teehniet! Provision 10-0saX
was concerned with this facet of the job and its language
eminently clear in its directive that “Existing surfaces * * *
shall be painted one coat of the final coat of paint * * *." We *
agree.
Plaintit! does not argue that TP 10-082. is unclear or in
confliet with other contract provisions regarding the require-
tuent that it put one firal coat of paint over the entire hospital >
exterior. Rather, plaintiff argues. since the contract was one
for repair of the hospital, that no painting should be required
to areas which were not damaged by the earthquake. We do
not feel that such an interpretation of TP 10-08~, is a reason-
able one. Indeed, to do as plaintiff urges would necessitate
ignoring the clear directive of TP 10-087,. and. of the con-
tract as a whole. “Contracts are not necessarily rendered
ambiguous by the mere fact that the parties disagree as to
their meaning. There must be a reasonable Uncertainty of
meaning.” Southern Constr. Co. v. United States, supra, Nn.
Mm Te Cr Cl at 1361. 364 FL 2d at 452-453. No such um-
certainty exists here. For the foregoing reason, the decision
i of the Board concerning the application of one coat of paint
to the entire exterior of the hospital is affirmed.
ee
See ck Carre me
W BE wen Sand
CLAIM ITI
Caoutract [Re quirements Le lating to Interior of the Hospital
While the testimony is not elear as to the amount of
‘lamage caused by the earthquake to the interior of the hos-
pital. there is no dispute that at the beginning of Phase IIT
the hospital interior could be grouped into the following
categories:
(a) areas that liad been
Phases [and IL:
previously repainted during
| heen
13
(b) areas that were neither damaged by the earth-
quake, nor sapalted during Phases I, II or III:
(c) areas that had not been painted prior to the earth-
quake ; and
(d) areas specifically excluded from the Phase I!
contract and designated N.I.C. (Not In Contract) on
the drawings.
There also appears to be no doubt that the parties practi-
cally from the initiation of the Phase III contract were un-
able to agree as to the painting required thereunder to the
interior of the hospital. A dispute concerning the work re-
quired by the contract culminated in the issuance of the
following directive by the contracting officer :
My decision is that you are to paint as a contract re-
quirement all areas, surfaces, and items of the interior
of the 5040th Hospital excepting areas indicated as
N.LC. (Not In Contract), and concrete walking sur-
faces, stairs, and platforms except those already painted.
elevator shafts, new acoustical tile units, prefinished sur-
faces such as ceramic tile and viny] wall covering, pipe
trenches. pipe shafts, cork and asphalt tile. [Item 17,
Rule + Documents. }
A subsequent directive ordered plaintiff's subcontractor to
paint N.R.R. (No Repairs Required) areas."
As a result of these directives, and subsequent oral and
written orders, plaintiff alleges that it was required to paint
the entire interior of the hospital. Accordingly, plaintiff
urges that its subeentractor was forced to do extra work.
beyond that called for by the contract. and therefore an
equitable adjustment in the contract price to compensate for
the extra work is warranted. Plaintiff's claim: for an equi-
table adjustment has been denied by both the contracting
officer and the Board.
Plaintiff in its second cause of action appeals the Board's
decision denying its claim for an equitable adjustment and
urges that the Board “* * * erred in concluding that the
contract required painting of the entire interior hospital
structure, inelnding previously repaired and painted areas:
undamaged areas: areas that never had been previous!
painted; and areas specifically excluded from the contract.”
“*Pivioth® feebls attempts to include the N RR. areas inte item & of TP
36) 00 tet uteonmvine meds falls to develop the argument
ae
=. <—- e
RMS
re ety
14
This clan, similar to CLAIM 1. fundamentally arises
from a conflict in the interpretation of a contract provision,
and isa question of law, Accordingly. #s we explained in con-
nection with CLAIM I, the decision of the Board concern-
ing this claim is subject to a full judicial review.”
We are again called upon to determine. although in a
different context, the meaning of TP 10-0sa, It will be re-
called that TP 10-080. was quoted in pertinent part herein-
above, and required the painting of all new and existing
surfaces except those specified under “SURFACES NOT
TO BE PAINTED.”
Technical Provision 10-09 “SURFACES NOT TO BE
PAINTED” states in pertinent part, that:
The following listed items will not require painting :
b. Luterior Surfaces:
(1) Conerete walking surfaces
(2) Stairs and platforms except those already
painted
(3) Elevator shafts
(4) New acoustical tile units and pretinished sur-
faces, such as ceramic tile. ete.
(0) Pipe trenches
(6) Pipe shafts
(7) Cork tile floors
(>) Areas scheduled on the drawings as unfinished.
We will now consider each of the areas of categories (a)
through (d) individually to determine for ourselves if the
Board's rejection of plaintiff's claim for an equitable adjust -
‘uent Was correct.
Category (a) Areas
Plaintitl., wiges, once again, as it did in connection with
CLAIM 1. that the true intent and purpose of this contract
can only be reached if its repair nature is not forgotten.
Plaintit! contends that to the extent that the contracting
officer's directives and the Board’s decision required it to
paint areas that had been previously repainted during Phase
Lor II, it was ordered to do work which was outside of the
Worn requirements of the contract and therefore it is entitled
foun equitable adjustment,
ee
eer % = sapra
15
We. accordingly. must decide whether category tac athens
were properly found to be within the work requirements of
this contract.’ While the actual number of rooms pointed
during ether Phase Toor TP has never been echarly o-tab-
lished. the testimony does show that the following pointing
oceurred :
(a) Phase TP Painting—(In April and early May i964)
(1) clinical laboratory areas,
(2) obstetric areas, and
(3) surgical areas,
(b) Phase I] Painting—( December 1964)
(1) Main lobby of hospital
Plaintiff argues that no evidence was introduced to show
that the parties intended to have areas which were painted
during Phases I and I] repainted during Phase ILL opera-
tions. (luite to the contrary. plaintiff urges, the testimony
shows that certain of the previously repaired areas were de-
Jeted by defendant. without a credit being sought. Plaintitf
would have us interpret this as proof positive that defendant
Was hot contractually entitled to have these previously re-
jrtinted areas worked upon once more in Phase IIT.
The testimony to which plaintiff refers for support of its
contention, if anything. cuts the other way. As we view the
testimony. the painting that was deleted was done by change
orders at the hospital's request and for its convenience.
Further, the testimony shows that since the painting of
Phases T and TI a considerable amount of constrnetion werk
had occurred. and the previously painted areas were sul-
jected to unusual amounts of dust and dirt. Also. since the
areas that had been repainted were in most instances the only
hospital areas in operation. and since the hospital was limp-
ing along under emergency conditions, these repainted are:s
were subjected to severe overuse. Lastly. much of the paliting
that was done under Phases Land I] was overa year old by the
tine of the Phase PD operation. All of these factors niade the
paluting of those previously painted areas a necessity. We.
accordingly, do not agree with plaintiff. that a Pha-e TI
painting of areas previously painted during Phases bod 1
anenots tothe performance of a useless and wasteful act. To
S$ onprs, st 004876
ee Pe
a weit Uae bt etl Denis
16
the contrary, we find that the painting was a necessity and
these areas were intended to be repainted during Phase ITI.
We also note that the category (2) areas come within the
terms of TP 10-087, and since they cannot reasonably be
classified under any of the exceptions of TP 10-004,, or as
N.LC, areas, we are all the more convinced of plaintiff's obli-
vation to paint them during Phase TIT.
Category (b) Areas
We now turn our attention to those areas of the hospital
ipterior that were neither damaged in the earthquake, nor
repaired under either of the earlier Phase I or II contracts
or under the Phase II] contract involyed in this action.
Plaintiff argues that these areas have no causal relationship
to the earthquake, and are clearly beyond the repair purpose
of the Phase IIT contract. Further, plaintitf urges that these
undamaged areas are obviously not related to the purpose for
whieh emergeney funds are made available by Title 42
Tus.C, § 1855e.
The Board was unconvinced for it quickly disposed of
plaintiff's claim by merely referring back to its comments for
rejecting plaintiff's elaim for compensation for exterior
painting. We believe that plaintiff's claim for an equitable
adjustment for painting category (b) areas requires a more
torough treatment. However, we should say that plaintiff's —
arguments fail to convince us that the category (b) areas were
intended as a whole not to be covered by the terms of the
contract. Since TP 10-0sv, requires the application of "* * *
one coat of the final coat * * *" to all existing surfaces, the
category (hb) areas obviously come within the contract work
requirements, Further, since psaintiff? does not point to any
other contract provision whieh is in confliet with TP 10-
vs. itis necessary for plaintit? to show that some or all of
these category (b) areas were not to be painted because they
are specifically excepted from the work requirements by TP
Ini, or were specifically excluded from the contract by
heing designated N.LC, areas.
A considerable portion of plaintil’s arguments relating
to the incorrectness of the Board's decision regarding
l7
category (b) areas is directed to those surfaces designated as
NLR. (No Repairs Required) on the drawings. Plaintiff
shrugs off the fact that these areas literally come within the
paint requirements of TP 10-0sa, by accentuating the repair
nature of the Phase II] contract. Plaintiff's arguments can
be readily disposed of, for if the parties had intended that
N.R.R. areas were to be excepted from the painting require-
ment of TP 10-08a,, they could have simply accomplished
this by so stating in either Technical Provision 10-08 or
Technical Provision 10-09, Ina case having language similar
to that of TP 10-08 and TP 10-09, we noted that, “Plaintiff
proffers no reason why those surfaces it contends were to
remain unpainted were not listed under ‘SURFACES NOT
TO BE PAINTED * in the specifications.” ** This same ques-
tion is relevant and timely here, and the reason for plain-
tiff’s failure to offer an explanation appears clear.
Plaintiff attempts, once again, to exclude category (b)
areas, as well as the other categories. from the coutract by
adding to its familiar argument that the drawings were in-
tended to tell it where to paint. the added contention that the
surfaces covered by the TP 10-094, ($) exception are shown
on the drawings by the designation N.R.R.
Neither party satisfactorily explains what was intended
to be excepted by TP 10-093. (8). However, for reasons more
fully developed in connection with CLAIM I, we find noth-
ing in the contract specifications which ean reasonably be in-
terpreted to direct the contractor to the drawings for the
areas it was obligated to paint. Accordingly, we feel that
plaintiffs argument is unfounded, and it is not necessary to
_ determining the meaning of TP 10-097, (§).
Plaintiff's failure to show why the « ategory (b) aveas were
not expressly excluded by Tee hnie al Provision 10-0), if that
was the intention of the parties. and its unreasonable argu-
ments concerning interpretation of the specification fail to
convince us that the decision of the Board is in error. We
thus conclude that plaintiff was responsible under tl.» terms
of the contract to paint category (b) areas,
RH Conetr Corp. ¥. United States, 142 Ct ©) 012. 918, 428 PF. 2a 1247,
W270) 1271 (197
S2e lecetles re
18
Category (¢) Areas
Plaintiff states that it was forced to paint areas of the
hospital which had never before been painted and that these
areas obviously have no relationship to the earthquake repair
contract under which it was performing. Plaintiff argues that
the paint requirements of the Phase III contract on] ¥ reflect
the intent of the parties if they are interpreted with its earth-
quake repair purpose as a touchstone. Accordingly, plaintiff
urges that it was forced to do work beyond the requirements
of the contract and should be compensated.
Plaintiff's argument is unccnvincing since the clear lan-
guage of the specifications, and particularly TP 10-0s, en-
compasses category (c) areas within its literal scope. Plain-
tiff offers no reasonable arguments to explain how the clear
‘ meaning of TP 10-08 can be avoided. We thus conclude that
the only areas of the hospital interior which were not in-
tended to be covered by the contract were areas specifically
excepted by TP 10-09d. or areas that were by mutual agree-
ment designated N.1.C. on the drawings.
Unfortunately, as plaintiff admits. it did not develop the
evidence on these points as fully as it might have. The only
specific category (c) areas which plaintiff discussed in any
detail are a loading dock area. and the surfaces mentioned
in a Field Memo. The loading dock area can be quickly dis-
posed of by quoting from the Board's decision with whieh we
agree (67-2 BCA © 6568, p. 30, 477):
Other examples given of subparagraph c. are the load-
ing dock area and windows ad doors. The latter clearly
come within no reasonable exception te the painting re-
quirements. Concerning the former our attention is in-
vited to the contractor's letter of 24 September 1965. We
find no reference in that letter (Tab 17) to the loading
lock area.
However, the question raised by Field Memo No. 77° ean-
not be as quickly disposed of. The Field Memo states:
Pending Formal CCO Action:
You are hereby authorized to apply two (2) Coats of
* This September 220 1965. meme was etenel be Mr William O Thompson,
defendants Project Enzineer, and authorized by Lt Col Jack ©. Hay good
Resident Eusineer ond the Concreeting Officer s representative
19
TT-P-00554 Exterior PVA Paint over previously un-
painted concrete, concrete enna! and cement plaster
surfaces within all areas above the eighth (sth) floor
level at the Central A-Wing Tower including the Access
Rooms and Storage Areas on the sth floor, the Elevator
Equipment «nd Control Areas on the 9th floor. the Ex-
haust Fa: & Mech. Equipment Room on the 10th floor.
and the stairway No, 1. The above 2 coats of ‘TT-P-
50a are to be applied in lieu of the specified coatings
ref. para. 10-0sa. and 10-O08b. (8) and (9).
The Board points out that of all the areas enumerated in
the Field Memo, the unpainted stairway is the only one which
was hot within the scope of required painting called for by
the contract. As a result of our independent review of the
contract, and particularly Section 10 thereof. we agree with
the Board's conclusion. Specifically, we find that the stair-
way is an item which was excepted from the contract by
TP 10-096. (2). Accordingly. our comments which follow
are only directed to the Board's treatment of the unpainted
stairway mentioned in the Field Memo.
The Board considered the memo and concluded that it on! y
authorized a change in paint. Further, although the Board
concedes that the memo authorizes a change in paint for an
area which was clearly not within the terms of the contract,
it nonetheless finds that the memo “* * * cannot be a diree-
tion to paint that feature, in the absence of other evidence
or protest.” The conclusion of the Board, in our view. is a
victory of form over substance. The Board clearly fails to
recognize the realities of the work-a-day conditions and re-
lationships that exist on a painting job, and unnecessarily
penalizes plaintiff, while, at the same time, permitting
defendant to reap an unjustified windfall.
It is difficult to understand why the Board fails to recog:
nize a responsibility on defendant's officers to point out to
plaintiff that it was doing work which was not called for by
the contract. While Field Memo No. 77 is. in our estimation.
enough to support plaintiff's claim of a constructive change.
additional documents are available to further strengthen
plaintifs claim.
Specifically by way of a September 25, 1065, letter. plain-
tit alerted defendant's resident engineer that it considered
Field Memo No, 77, of September v2. 165." © © asa
20
directive to paint previously unpainted concrete, masonry
and cement plaster surfaces, and that no option is granted by
the use of the work [sic] ‘authorized’.” Plaintiff goes on to
reasonably request. if Field Memo No. 77 has been misin-
terpreted, that it be advised in writing. It appears that
defendant thus had an opportunity to warn plaintii! that
painting of the previously unpainted stairway was being
done as a gratuity. and they would not be compensated for
their work. We are not aware of wny response to plaintitl's
request, and therefore conclude that defendant's acts
wnounted to a compensable constructive change.
Category (d) Areas
We now turn our consideration to the last remaining areas
of interior work for which plaintiff claims compensation.
Namely, category (d) areas.
There appears to be agreement by the parties that plain-
tiff was not obligated by the contract to paint any of the sur-
faces designated N.I.C. in the drawings. However, there is
no doubt that some of the N.I.C. surfaces were painted by
plaintiff. The question which must now be resolved is whether
the subcontractor did the work voluntarily. or was ordered.
expressly or constructively, to paint specifieally excluded
areas by the contracting officer. See Gholson. Byars & Holmes
Constr, Co. vy. United States, U3 Ct. Cl. 374. 388. 351 F. 2d
Ose. HE 5 (1965). Tf Warren Painting Co. was actually
or constructively ordered to paint N.C. surfaces, it is en-
titled to an equitable adjustment. See WRB Corp. v. United
tates, 183 Ct. Cl. 409 420 (1968),
A review of the drawings indicates that several areas. in-
eluding those identified as A-35, 4-36. A-37. A—12 and A-a5
were designated as N.L.C. areas. Nonetheless. the subcontrae-
tor painted the metal acoustical tile ceilings in the above
designated areas,
Defendant brands the acts of the subeontractor as those
of a volunteer and summarily dismisses them. It urges this
court to treat plaintiffs claim in similar fashion. The Board
after reviewing the evidence in support of plaintiff's claim
concluded that tie contractor was not ordered or directed
21
* * to paint any surfaces reasonably falling within these
N.LC. exceptions.” We disagree.
A September 18, 1965. memorandum of defendant's project
engineer. discloses that he was aware that plaintitl was about
to paint areas that were designated as N.LC. in the drawings.
However, instead of informing the crew that the areas were
hy mutual agreement excluded from @io painting require-
ments of the contract, he reprimanded the erew for not clean-
ing the areas that were about to be painted. The crew was
reminded of the surface preparation requirements of TP
1-06 and TP 10-084. In fact after plaintiff's acting foreman
evidenced a lack of familiarity with the specifications. a set
was obtained and relevant paragraphs were reviewed. The
evidence goes on to show that defendant's project engineer
made a number of return visits to the N.LC. area. Specifieally
the memorandum states:
At approximately 10:00 hrs, I checked to see how the
painters were progressing. Corridor A-S (ceiling) was
cleaned and ready to receive paint. Approval was given
to paint this area. 1 suggested that a couple of the men
start painting this cleaned area and the rest of the crew
continue to clean the remaining areas. [Emphasis
added.]
The remainder of the memorandum foes on to complain about
the crew's poor preparation of certain N.C. areas. The con-
vern of defendant's project engineer. and the steps he took
to insure that the N.I.C. areas were properly prepared and
painted is significant.
We are satisfied that plaintiff did not act a~ a volunteer,
hut painted these N.LC. areas after receiving the tacit and.
undoubtedly, oral approval of defendant's project engineer.
The case of Gholson, Byars & Holmes Constr. Cov. United
States, supra, is particularly helpful in its expression of the
realities that exist in a situation such as we have here. Par-
ticularly significant is the following statement. which is found
at page 389.551 F.2d at 996:
* * * Indeed, it would be a rather unusual situation
for a contractor voluntarily to do substantially more
work than is required by the terms of the contract, thus
only to inerease his costs.
22
We. accordingly, find that the action of defendant. by way
of its project engineer, amounts to a constructive change and
plaintiff is entitled to an equitable adjustment for its extra
work.
In summary, the evidence shows that plaintiff was ordered
to paint at least one stairway and certain N.LC. areas that
were not within the painting requirements of the Phase IIT
contract. The action by defendant in ordering plaintiff to
paint these areas amounts to a constructive change of the
contract. and plaintiff is entitled to an equitable adjustment
for its extra work.
CLAIM IIT
Application of FE rcvessive Ntaondards of Workmanship
Plaintiff claims that the standards of interior painting.
quality and workmanship. to which its subcontractor was
held exceed both the standards established by the contract
and those customary in the trade for painting of repair work.
As a result. plaintiff argues. a constructive change oceurred
which entitles it to an equitable adjustment for expenditure
of labor and materials to meet defendant's unusual and un-
necessary high standards of work.
This very same claim. and the arguments allegedly in
support thereof. was made by plaintiff to first the contract-
ing officer and later to the ASBCA, without suecess. The
Board after a review of the entire record, but replying pri-
marily on TP 10-07, TP 10-10 and an August 20, 1965, letter
from plaintiff to its subcontractor. found plaintiffs claim te
he unsupported by the evidence and accordingly denied it.
The question of whether the Government applied too high
a standard Of workmanship in inspecting the work done by
the subcontractor, Warrea Painting Company Ine., to the
interior of the building, is a question of facet. See Leirer
Constr. Corp. v. Vnited States, 130 Ct. Cl. 24 (1962):
Moarivell Dijnamone fer Co. . 3s T’ nite | Nhat * 18] Ct. Ci. 6OF.
386 F.2d 855 (1967),
The Wunderlich Net?’ provides that an administrative
decision as to factnal questions is final unless it is shown te
be fraudulent. capricious. arbitrary. or grossly erroneous as
NS aupra,47t Se § 721
23
to necessarily imply bad faith. or is not supported by suh-
stantial evidence,
The manner in which administrative determinations are to
he reviewed by this court has been the subject of numerous
inquiries. For example in) L¢ttmore-Fresmuth Corp. v.
lonited Ntates, U2 Ct. Ch Sot. 390 FE. vd 664 (1968). we
pointed out that if a reasonable man, after a review of the
entire record finds the evidence to be such that he could have
reached the conclusion arrived at by the administrative
tribunal, then we are precluded from substituting our judg-
ment for that of the agency involved.
Similarly we pointed out in Carlo Bianchi and Co. v.
TV yited States, 167 Ct. Cl 364. S67 -A68) 619640. cert. denied
ose Us. M41 (1965):
The task before this court under the Supreme Court
decision is to review the determination of the Board of
Claims and Appeals of the Corps of Engineers and de-
cide whether there was substantial evidence in the
record as a whole before that Board to justify its con-
clusion. In reaching our conchision, we cannot disregard
plaintiffs evidence. However. even though we might
have decided as an original matter with plaintiff on
balance, the decision of the Supreme Court requires us to
go further and uphold the Board's deeision if there was
substantial evidence to support the Board's decision on
the record asa whole.
Qur review of plaintiffs claim is iiecessarily guided by
the above standards.
While plaintiff interwove a number of arguments to sup-
port its claim. they all substantially fall into one of the fol-
lowing subheadings :
(a) the standard of acceptable workmanship to whieh
plaintiff's painting must be compared is that prevalent in the
Anchorage ares fora one-coat paint job:
(bh) the deficieney lists. so-called pumeli lists. indicate that
too meticulous an Inspection was being imposed by the Gov-
ernment fora one-coat paint job:
te) asa result of the imposition of ligher standards of
inspection, the subcontractor was put to the unnecessary ex-
pense of not only cleaning up unjustified deficiencies. but of
also applying excessive amounts of paint. at increased costs
of time and material. to obtain job approval.
24
We now comstder ereh of the claims embodied in the above
subheadings to determine Hf there ts substantial ev idence to
Shpport the Board's determination.
(a Standard of Workmanship
Pisinta® urges that the standard of workmanship te which
its subcontractor should have been held was that whieh pre-
Vailed in the Anchorage area, Extensive testimony by both
plaineit and defendant was elicited on this subject. Phat
stuvests thar the standard which should have been teed by
defendant's inspectors is best expressed by the follow ing
tostinionyefanarea architect :
** * a one-coat job * * * ts generally done to -ave
the owner some money. he knows that he is not going te
get the best job and that perhaps later on that he can
have it probably repainted in a vear or two in normal
housekeeping efforts. Tf vou want a better job. vou a-k
for two counts.
** * where vou are inclined to see where a crack
has been repaired * * * vou will touch up the crack
and then go over the whole surface again, Sometimes this
repair work is visible or it isn’t completely covered, but
yeu accept the job as in the best workurmnlike manner.
Defendant does not disagree with this statement. and thus we
neeept Itoas stating the prevailing Anehorage standard of
Workianship fora one-coat paint job,
Hlowever. there is considerable confusion in the record as
to Which surfaces were to receive only a tonehieaup and one
final coat and thus were toe be indwed by the above standard.
and which were te be stippled and thas subject te perhaps
another standard.
Stippling by plamtubs own testimony is not a teuch-up
and one-coat final paint job. Plaintal goes on te explain that
stippling is a method of achieving a textured effeet on a
surface. The additional paint and labor required to stipple a
surface was adequately expressed for plaintul by Mr. War
ren. himself, who testitied that it required the application
of an extremely heavy coatof paint. The paint is then allowed
to set until its starts to dry.and then a specially adapted
atipyple roller is used to obtatn the desired textured effect,
It is fair to conclude. fron: plaintiff's own evidence that
suimtantial portions of the interior of the hospital were stip.
25
pled. Plaintiff's own testimony further indicates that a stip-
pling paint job requires at least two coats of paint. Indeed,
the testimony as a whole clearly brings out that we are not
here concerned exclusively with a one-coat paint job. It
should also be emphasized that to the extent plaintiff had to
tipple the interior of the hospital and thus use more paint
and labor than it would have for a one-coat paint job. it has
been compensated by the Board.*°
It is significant since it points ont that while there may
not have been a dispute between the parties as tothe prevail-
ing standard for a touch-up and a one coat of paint job.
plainti® has not carefully shown, in those instances that it
alleged the use of a wrong standard of inspection. that the
surfaces were only to receive a touch-up and one final coat
of paint.
Notwithstanding the extensive te-timony concerning the
prevailing Anchorage standard of workmanship for one-coat
paint jobs. and the confusion in the record concerning
whether the areas being inspected were to receive one or two
coats of paint. the Board in its decision rightly pointed out
that the following contract specifications set forth a standard
of workmanship to which the parties agreed to be bound:
10-6 CLEANING AND PREPARATION OF
SURFACES:
w. General: * * * Surfaces to be painted shall be
clean before applying paint or surface treatments. * * *
Painting shall not proceed until all imperfections. cracks
and holes in surfaces to he painted are repaired in an
approved manner, Any newly painted surfaces marred
or otherwise damaged and al! existing painted surfaces
shall be cleaned, repaired and repainted.
~ & * *
jt PAINT APPLICATION:
a. Gene ral:
(1) 1/7 work shall be done ina workmanlike manner.
and the finished surfaces shal] he free from runs. drops.
ridges. waves, laps. brush marks. and variations in color.
texture and finish. The hiding of the last required paint
coat shall be so complete that the addition of another
coat of paint would not inerease the hiding. All coats
shall be so applied as te produce film of uniform thick-
hess. Special attention shall be given to insure that edges,
“aN 4 supra, at Mat? Fs
‘ah sodaste | Dem
26
corners, crevices, welds, and rivets receive a film thick-
ness equivalent to adjacent painted surfaces. Prior to
application of final finish coats, surfaces shall be care-
fully examined and, where necessary, touch-ups shall be
accomplished to eliminate all holidays. dull spots. or
suction spots. * * *
* a a * *
10-10 CLEANING: * * * Paint spots, cil, or stains
upon adjacent surfaces shall be removed an¢ the entire
job left clean and acceptable.
Our review of the record indicates that the Board correct ly
applied this standard in evaluating plaintiffs claim. and we
concur in its applieation.
(b) Meticulous Application of Standard of Workmanship
Plainti argues at length that the Government Inspectors
did not conduct their inspection in accordance with the
touch-up and one final coat of paint standard of workman-
ship to which it should have been held. While. as concluded
above. we find that plaintiff should have been held to the
standards of workmanship that it agreed to in the contract.
to the extent it differs from a touch-up and one final coat
standard, we find that the evidence does not support plain-
titf's charge of overly critical or meticulous inspections by
defendant for either standard.
A number of witnesses for plaintiff testified as to the high
standard of inspection to which the job was held. Mr. War-
ren. himself, testified that ina one-coat paint job all that ean
be expected is to obtain an overall clean appearance, and that
it is not unusual to have brush marks, some transparent spots,
and even small skips, known in the trade as cateyes or holi-
days. Further testimony by plaintiff's witnesses, supporting
Mr. Warren’s testimony, went on to point out that a floodlight
or tlashlight was used by the inspectors to get a “real close
look” at the painted surface. By this technique one witness
explained, the inspectors were able to "* * * go up toa wall
and just about look through the palmt on a one-coat job.”
Other witnesses for plaintiff testified that the inspectors did
hot conduct a one-coat, walk-through-type inspection. They
explained that in this type of inspection the surfaces are
viewed from about four to six feet. Whereas in the inspection
~
~
27
of the Elmendorf Hospital, the inspectors were within a few
inches of the freshly painted surfaces, This, the witnesses
explained, is the reason that minor type deficiencies, which
normally are acceptable, were picked up and placed on de-
ficiency lists.
When we look to defendant's testimony. we find that there
is disagreement between the parties as to how the inspections
were carried out. Defendant's testimony shows that the in-
~pectors were told not to “nit pick the job apart.” and that
the important thing in carrying out the inspection was to
make sure that the surfaces were reasonably covered. Fur-
ther testimony showed that the inspectors were told to. and
did. conduct their inspections from a distance of four to six
feet from the freshly painted surface. The testimony also
shows that the inspectors were only to require a repainting
of deficiencies which were noticeable from this distance.
Plaintiff's allegation concerning the use of a “floodlight™
lh inspectors to test the paint coverage attained by its sub-
contractor is also unconvineing. Indeed the testimony of de-
fendant’s inspectors indicates that floodlights were used
primarily to inspect replastered walls to insure that all plaster
cracks had been properly sealed, and did not show through
the fiyal coat of paint. In the instances Where floodlights were
emploved to inspect a freshly painted room or area, it was
shown that either the lighting fixture in that room or area
had been damaged by the earthquake and no proper light
source~was accordingly available. or that the areas were
poorly lighted and additional light was needed to facilitate
the inspection.
We thus must conclude that not only is there substantial
evidence in the record to support the Board's determination.
but also a noticeable lack of cons incing evidence on the part
of plaintiff that the work was subjected to an overly meticu-
lous inspection.
(c) Expenditure of Excessive Time and Material
Plaintiff alleges that the metieulons Inspection procedure
practiced bx defendant resulted in the expenditure of exces-
sive material and labor in order to have its work accepted.
Prt.) ©
2 BaD IEE RT PTD
Sats Sonat Se
28
While plaintiff's testimony does indicate that it> labor and
material costs were significantly increased as a result of the
inspection by defendant, we are not convinced. Plaintists
testimony is lacking in specifies and consists primarily of
general statements by its witnesses.
On the other hand. defendant's testimony showed. as a
result of some 100 paint samplings. covering about 107 of
the hospital surfaces painted. that over half of the hospital
had a one-coat thiekness of paint while the other half had
hetween one and two coats. Thus the evidence is not clear
that plaintiff used excessive amounts of paint in carry iny out
the work requirements of the contract. Furthermore, ever
if we conclude that plaintitf was forced to use excessive
amounts of paint and labor. the record does not clearly show
if these expenditures were made in connection with areas
that were to receive the toneh-up and one-coat paint job or in
carrying ont the stippling order of defendant, for which
plaintitf has heen compensated by the Board. We. therefore.
agree with the Board when it -aid ;
We find the work was not subjected to such meties!ous
inspections as claimed. Tt is not the faet, as elated, that
the single coat requirement ealled only for a “clean-up”
fol permitting certain imperfections. Technica! Provi-
sien 1-07 above quoted required finished surfaces to
achieve a hiding equivalent to that of an additional coat
and to be free of the stated imperfections, Although thi-
undonbtedly required a more careful and possibly fuller
ipplication than would have been necessary if another
coat Were to follow, the specification itself was the mests-
nre of the undertaking and it was not required to be
exeowded, To a substantial degree such heavy application
ef the non-stipple type paint specified. a= wa- required
te support the stippling process, will be compensated
under our allowance of claim item 5 above.
After a careful review of the entire record, we de not find
Sup pert for plaintitt’s claim for an equitable adjustment. Te
the contrary. we find the Board's factual determinations are
net frandulent. capricions. arbitrary, or eros-ly erroneens a
te necessarily imply bad faith. and that they care supported
Ie srabestamtial ev tence.
29
CONCLUSIONS
CLAIM 1
Plaintiff's motion for summary judgment is denied, de-
fendant’s cross-motion for summary judgment is granted,
and the petition in this claim is dismissed.
CLAIM I1
Plaintiff's me:ten for summary judgment with respect to
the painting of one stairway and certain N.L€. areas is
granted. and defendant's cross-motion to that extent is
denied. Further proceedings are stayed pursuant to Rule 167
for a period of ninety (90) days to afford the parties an op-
portunity to obtain an agency resolution of the amount of
the equitable adjustment to which plaintiff is entitled.
CLAIM III
Plaintit!’s motion for summary judgment is denied, de-
fendant’s cross-motion for summary judgment is granted
and the petition in this claim is dismissed.
9
feaera et org seg
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