Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 26 (2000)

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Cite as: 530 U. S. 604 (2000)

Stevens, J., dissenting

II

In my judgment, the Government's failure to meet the required 30-day deadline on September 19, 1990, despite the fact that the POE was in a form that merited approval, was a breach of its contractual obligation to the contrary.3 After this, its statement in the September 21 Ake letter that the OBPA prohibited approval until at least October 1991 must also be seen as a signal of its intent to remain in breach of the 30-day deadline requirement for the coming year. The question with which the Court is faced, however, is not whether the United States was in breach, but whether, in light of the Government's actions, petitioners are entitled to restitution rather than damages, the usual remedy for a breach of contract.

As the Court explains, ante, at 608, an injured party may seek restitution as an alternative remedy only "on a breach by non-performance that gives rise to a claim for damages for total breach or on a repudiation." Restatement (Second) of Contracts § 373 (1979) (hereinafter Restatement (Second)). Whether one describes the suspect action as "repudiation" (which itself is defined in terms of total breach, see ante, at 608) or simply "total breach," the injured party may obtain restitution only if the action "so substantially impairs the value of the contract to the injured party . . . that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance." Restatement (Second) § 243. Although the language varies to some small degree, every major statement of contract law includes the same admonition. See, e. g., 5 A. Corbin, Contracts § 1104, pp. 558, 562 (1964) ("Restitution is an available remedy only

3 It is incorrect, in my view, to assert that the Government failed to give the proposal "timely and fair consideration," ante, at 620, because, as the Weetman letter establishes, the Government did engage in such an evaluation process even after the enactment of the OBPA. It was in failing to issue the approval on the heels of that evaluation that the Government ran afoul of its obligations.

629

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