United States v. Wunderlich/Dissent Jackson
Mr. Justice JACKSON, dissenting.

It is apparent that the Court of Claims, which deals with many such cases while we deal with few, has reached a conclusion that contracting officers and heads of departments sometimes are abusing the power of deciding their own lawsuits which these contract provisions give to them. It also is apparent that the Court of Claims does not believe that our decision in United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256, completely closed the door to judicial relief from arbitrary action unless it also is fraudulent in the sense of 'conscious wrongdoing, an intention to cheat or be dishonest.' Nor could I have believed it.

Granted that these contracts are legal, it should not follow that one who takes a public contract puts himself wholly in the power of contracting officers and department heads. When we recently repeated in Moorman that their decisions were "conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith", Id., 338 U.S. at page 461, 70 S.Ct. at page 290 (emphasis supplied), I supposed that we meant that part of the reservation for which I have supplied emphasis. Today's decision seems not only to read that out of the Moorman decision, but also to add an exceedingly rigid meaning to the word 'fraud.'

Undoubtedly contracting parties can agree to put decision of their disputes in the hands of one of them. But one who undertakes to act as a judge in his own case or, what amounts to the same thing, in the case of his own department, should be under some fiduciary obligation to the position which he assumes. He is not at liberty to make arbitrary or reckless use of his power, nor to disregard evidence, nor to shield his department from consequences of its own blunders at the expense of contractors. He is somewhat in the position of the lawyer dealing with his client or the doctor with his patient, for the superiority of his position imposes restraints appropriate to the trust. Though the contractor may have convenanted to be satisfied with what his adversay renders to him, it must be true that he who bargains to be made judge of his own cause assumes an implied obligation to do justice. This does not mean that every petty disagreement should be readjudged, but that the courts should hold the administrative officers to the old but vanishing standard of good faith and care.

I think that we should adhere to the rule that where the decision of the contracting officer or department head shows 'such gross mistake as necessarily to imply bad faith' there is a judicial remedy even if it has its origin in overzeal for the department, negligence of the deciding official, misrepresentations-however innocent-by subordinates, prejudice against the contractor, or other causes that fall short of actual corruption. Men are more often bribed by their loyalties and ambitions than by money. I still believe one should be allowed to have a judicial hearing before his business can be destroyed by administrative action, although the Court again thinks otherwise. Cf. Ewing v. Mytinger & Casselberry, 339 U.S. 594, 604, 70 S.Ct. 870, 875, 94 L.Ed. 1088. 

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