Unpublished Disposition, 936 F.2d 581 (9th Cir. 1990)

MEMORANDUM^* 

Defendant-appellee Phelps contracted with the Army Corps of Engineers for construction of facilities at an Air Force base in Idaho. It subcontracted with plaintiff-appellant Bowman a portion of the job involving water and sewer lines and related matters, including excavation of rock. A dispute arose when Bowman asked for payment for excavated rock.

The parties disagreed with reference to the amount due Bowman, who claimed $88,000. After Ray Bowman consulted counsel, he asked for $55,380, one-half of which would be paid to his blasting subcontractor. A counteroffer was made and the parties agreed to settle for $42,690. Bowman signed a change order and lien release, waiving any Miller Act claims.

Bowman now seeks damages in excess of $90,000 for the rock overrun. It contends there was no accord and satisfaction, and the release was not supported by consideration and was obtained by fraud, compulsion, duress or overreaching.

The district court referred Phelps' summary judgment motion to Magistrate Williams who made a Report and Recommendation. The district judge adopted the report, granted summary judgment and dismissed the action with prejudice.

We affirm for the reasons given by the magistrate in his report of January 26, 1990. Appellee Phelps asks for attorneys' fees on appeal. It is entitled to them under the express terms of the Miller Act release signed by Bowman. See United States ex rel. Leno v. Summit Constr. Co., 892 F.2d 788, 791 (9th Cir. 1989). Phelps should file a bill of costs and request for attorneys' fees pursuant to Ninth Circuit Rule 39-1.