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Mendenhall v. Kusicko and U.S.

United States Court of Appeals, Ninth Circuit
Sep 29, 1988
857 F.2d 1378 (9th Cir. 1988)

Summary

holding that actions subject to the Contract Dispute Act, 41 U.S.C. §§ 601-613, must be heard by the Court of Claims

Summary of this case from Pearlstein v. United States Dep't of Def.

Opinion

No. 87-4048.

Submitted August 23, 1988.

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).

Decided September 29, 1988.

David L. Mendenhall, Kooskia, Idaho, in pro. per.

Jeffery W. Ring, Asst. U.S. Atty., Boise, Idaho, for respondents-appellees.

Appeal from the United States District Court for the District of Idaho.

Before BROWNING, HUG and BEEZER, Circuit Judges.



David L. Mendenhall appeals the district court's dismissal for lack of subject matter jurisdiction of his claim for breach of two timber sales contracts against Richard Kusicko, a contracting officer employed by the United States Forest Service ("Forest Service"). He contends that the district court erred by dismissing his breach of contract action under the Contract Disputes Act ("CDA"), 41 U.S.C. § 601-613, because his claim against the Forest Service is actually constitutional, not contractual, in nature.

Mendenhall's claim against the Forest Service is subject to the CDA because (1) his claim is founded upon an express contract with the United States within the meaning of 28 U.S.C. § 1346(a)(2), and (2) a timber sale contract is a contract for the disposal of personal property within the meaning of 41 U.S.C. § 602(a) of the CDA. See, e.g., Ingersoll-Rand Co. v. United States, 780 F.2d 74, 79 (D.C.Cir. 1985) (discussing scope of section 602(a)); Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed.Cir. 1983) (same). Because Mendenhall's timber sale contracts are subject to the provisions of the CDA, jurisdiction lies with the Court of Claims. See Ingersoll-Rand, 780 F.2d at 76. 28 U.S.C. § 1631 directs that when a court finds that it lacks jurisdiction it shall transfer the action to the proper court, if such transfer is in the interests of justice.

It is therefore ordered that this action be transferred to the Court of Claims.


Summaries of

Mendenhall v. Kusicko and U.S.

United States Court of Appeals, Ninth Circuit
Sep 29, 1988
857 F.2d 1378 (9th Cir. 1988)

holding that actions subject to the Contract Dispute Act, 41 U.S.C. §§ 601-613, must be heard by the Court of Claims

Summary of this case from Pearlstein v. United States Dep't of Def.

holding that breach of contract claim was properly dismissed because it was subject to the jurisdictional provisions of the CDA

Summary of this case from Southwest Marine, Inc. v. United States

noting that jurisdiction resided with the Court of Federal Claims where plaintiff's claim was founded on an express contract with the United States, subject to the CDA

Summary of this case from United Aeronautical Corp. v. U.S. Air Force

ordering the action transferred to the Court of Claims and, without analysis, contravening the District of Idaho's order dismissing the action for lack of subject matter jurisdiction pursuant to the CDA

Summary of this case from Sunbelt Rentals, Inc. v. United States
Case details for

Mendenhall v. Kusicko and U.S.

Case Details

Full title:DAVID L. MENDENHALL, PETITIONER-APPELLANT, v. RICHARD KUSICKO AND U.S…

Court:United States Court of Appeals, Ninth Circuit

Date published: Sep 29, 1988

Citations

857 F.2d 1378 (9th Cir. 1988)

Citing Cases

Janicki Logging Co. v. Mateer

"[A] timber sale contract is a contract for the disposal of personal property within the meaning of 41 U.S.C.…

Southwest Marine, Inc. v. United States

As a result, the CDA governs those claims because they arise out of express government procurement contracts.…