Mendenhall v. Kusicko

Ninth Circuit

Mendenhall v. Kusicko

857 F.2d 1378, 1988 WL 99292

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 29, 1988

DocketNo. 87-4048

StatusPublished

Cited by10 cases

This text of 857 F.2d 1378 (Mendenhall v. Kusicko) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mendenhall v. Kusicko, 857 F.2d 1378, 1988 WL 99292 (9th Cir. 1988).

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Opinion

PER CURIAM:

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 Ku-sicko, 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.

[1379]*1379Mendenhall’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.

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PER CURIAM:

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 Ku-sicko, 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.

[1379]*1379Mendenhall’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.

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857 F.2d 1378, 1988 WL 99292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendenhall-v-kusicko-ca9-1988.

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