Malan Construction Corporation, Plaintiff-appellant, v. United States of America, Defendant-appellee, 318 F.2d 709 (2d Cir. 1963)

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U.S. Court of Appeals for the Second Circuit - 318 F.2d 709 (2d Cir. 1963) Argued May 28, 1963
Decided May 28, 1963

Alvin L. Korngold, Mineola, N. Y., for appellant.

Robert M. Morgenthau, U. S. Atty., Southern District of New York (John Paul Reiner, Eugene R. Anderson, Robert E. Kushner, Asst. U. S. Attys., of counsel), for appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.


Pursuant to the Wunderlich Act, 41 U.S.C. §§ 321, 322, plaintiff brought this action in the United States District Court for the Southern District of New York for additional compensation under a contract it had with the Veterans Administration, claiming it was ordered to perform work it was not contractually required to perform. Pursuant to the standard government contract "disputes clause" plaintiff's claim was submitted to the Contracting Officer, whose decision was adverse to plaintiff. Appeal was taken to the Construction Contract Appeals Board which also denied the claim.

Plaintiff complains, though agreeing with the Government that there are no genuine issues of fact in dispute, that the Veterans Administration's procedures adopted in its case denied it procedural due process and denied it its constitutional rights, violated the provisions of the Administrative Procedure Act, 5 U.S.C. § 1001 et seq.; and the final decision adverse to it was not supported by substantial evidence.

We hold, as Judge Cashin held, that there is no merit to appellant's claims, and we affirm the district court judgment on the opinion below.