412 F.2d 1277
OWENS-CORNING FIBERGLAS CORPORATION and Polytron Company, By and Through Walsh Construction Company
The UNITED STATES.
United States Court of Claims.
July 16, 1969.
Walter F. Pettit, San Francisco, Cal., attorney of record, for plaintiff. Harold C. Nachtrieb, Thomas W. Kemp, Allan J. Joseph, Miller, Groezinger, Pettit, Evers & Martin, San Francisco, Cal., of counsel.
Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.
ON STIPULATION AND REQUEST FOR AN ORDER
This is a contract case, involving an agreement between plaintiff Walsh Construction Company and the Atomic Energy Commission, which is in this court on review under the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1964), of a Commission decision. Both parties have moved for summary judgment on the administrative record. Trial Commissioner Spector recommended, in a comprehensive opinion filed April 21, 1969, that plaintiff be held entitled to recover, and that further proceedings here be stayed to permit the parties to obtain an administrative resolution by the agency of plaintiff's equitable adjustment.
The parties thereupon stipulated that "the plaintiff is entitled to recover in accordance with the ultimate conclusion of the Report of the Commissioner" and that the court proceedings be suspended "in order to afford the parties an opportunity to obtain an administrative resolution" by the Atomic Energy Commission "of the equitable adjustment to which, under this stipulation, the plaintiff is entitled". The parties requested the court to issue an order to the foregoing effect. However, the stipulation also provided that "Inasmuch as the defendant does not agree with all aspects of the Opinion of the Commissioner, filed April 21, 1969, although it takes no issue with the ultimate determination that plaintiff is entitled to an equitable adjustment under the Changes article, it is further stipulated and agreed the parties will request, and do so request herein, that said Opinion not be adopted by the Court as its opinion for publication, but instead that the Court issue an order holding that plaintiff is entitled to recover an equitable adjustment on the basis of its efforts to comply with specifications impossible to perform". The stipulation concluded by stating that "in the event that the stipulation is rejected in whole or in part by the Court, it is agreed that the entire stipulation shall be void and of no effect whatsoever."
The court rejects the stipulation because it seeks to tie the court's hands as to whether it shall issue an opinion and what the content of that opinion shall be. The court will not entertain a motion by one party, a joint motion, or a stipulation in which it is made a condition of acceptance of or acquiescence in a trial commissioner's recommendation that the court will take any specified action with respect to the commissioner's opinion supporting that recommendation, i. e. adopt the opinion as it stands, adopt it as modified in a certain way, or not adopt it at all. The court must remain wholly free to issue such opinions and in such form as it deems proper.
If a party who wishes to accept or acquiesce in a commissioner's ultimate recommendation is dissatisfied with all or part of the commissioner's opinion (or reasoning) supporting that recommendation, such party should inform the court by motion or stipulation, that he accepts the ultimate recommendation (or acquiesces in it) but believes that the opinion should be modified in such-and-such a way. The other party may respond, if he wishes. The court will then consider these submissions and decide for itself — as it always does with respect to commissioner's opinions and recommended conclusions of law — whether to adopt the commissioner's opinion and, if so, whether to make any modifications in it. In no event will the court consider any acquiescence or acceptance conditioned (as is the acceptance in this case) upon the court's agreeing to take a certain course with respect to a commissioner's opinion. The acquiescence or acceptance must be unconditional, though either party can point out, as we have said, changes which it is believed should be made in the commissioner's opinion or recommendation. If a party is willing to accept or acquiesce in a commissioner's ultimate recommendation, he has no proper interest in refusing to indicate that position simply because the court may adopt supporting views with which the party does not agree.
On this basis, we reject the stipulation in this case and decline to issue the order suggested in the stipulation. The parties may now proceed under the practice outlined above in this opinion, or the defendant may except to the trial commissioner's recommendation and opinion in due course (under Rules 99(a) and 55(b) (3)); for that purpose, the date of this opinion shall be considered the date of the filing of Commissioner Spector's report.