Opinion
No. 384-77.
August 4, 1981.
Thomas E. Harrison, Jr., New York City, attorney of record, for plaintiff.
Frances L. Nunn, Washington, D.C., with whom was Acting Asst. Atty. Gen. Stuart E. Schiffer, Washington, D.C., for defendant.
Petition for review from the Armed Services Board of Contract Appeals.
Before COWEN, Senior Judge, and KUNZIG and SMITH, Judges.
ORDER
This matter comes before the court on plaintiff's motion for relief from judgment, awarded defendant in our opinion of December 17, 1980, 226 Ct.Cl. ___, 639 F.2d 732, on the ground that plaintiff believes it was denied due process because of the appearance of bias and prejudice on the part of the Armed Services Board of Contract Appeals Administrative Law Judge in reaching his appealed-from decision.
Subsequent to the date of our per curiam opinion herein, plaintiff was advised by the Department of Justice of ex parte communications to Government counsel from, and initiated by, the same administrative law judge, regarding another case (docket No. 65-80C) involving a different claim by this plaintiff. There is no charge of any attempted ex parte communication in the instant case, nor is there evidence of any. Nevertheless, because of the co-pending status of the two actions, and the appearance of potential bias and prejudice,
IT IS ORDERED that plaintiff's motion is granted to the extent that the judgment of the court, dated December 17, 1980, is vacated. The case is remanded to the trial division of this court for a de novo determination and report by a trial judge, based on a preponderance of the evidence in the existing administrative record.