April 21, 1987

APPEAL OF

CHARLES C. RAZOR

d/b/a RAZOR TRUCKING

UNDER CONTRACT NO. HCR 90019

PSBCA NO. 1569

APPEARANCE FOR APPELLANT:

Louis F. Robbio, Esq.

APPEARANCE FOR RESPONDENT:

Lyman T. Johnston, Esq.

OPINION OF THE BOARD ON MOTION FOR SANCTIONS AND OTHER RELIEF

On March 20, 1987, Appellant filed a Motion for an Order to Show Cause and for Granting of Appeal for Respondent’s Failure to Defend. As grounds for its motion, Appellant states that Respondent failed to supply on a timely basis certain documents pursuant to an Order of the Board dated November 18, 1986. Appellant also requests that sanctions be imposed, including attorney fees and costs incurred in prosecuting the motion.

On October 27, 1986, appellant filed a request for production of documents. Respondent filed a timely opposition to certain of the requested documents on relevancy grounds and that their production would be burdensome and oppressive. The Board was thereafter advised that the parties were negotiating the issues and did not require a ruling from the Board. A hearing on the appeal was initially scheduled for December 4-5, 1986.

By Order and Memorandum of Conference call dated November 18, 1986, the parties’ efforts to resolve the discovery issue were discussed. The Order reads, in part, as follows:

“Appellant has now limited the request to such documents contained in 120 contracts. Accordingly, it was determined that the Contracting Officer’s representative would examine such contracts and copy the requested documents. The documents will thereafter be provided to Appellant’s counsel by Respondent’s counsel.”

The hearing originally scheduled for December 4 was postponed and reset for January 15, 1987. Upon a further representation by the parties that they were unable to complete discovery, the hearing was rescheduled for April 7-8, 1987.

The requested documents were sent to Appellant on or about March 30, 1987, by Respondent’s counsel, who, at the same time, filed an opposition to the pending motion. Because it was not practicable o review and analyze the voluminous documents prior to April 7, the latest scheduled hearing in this appeal was also cancelled.

Respondent in its opposition to the motion concedes that it was its obligation to furnish the documents in a timely manner, but adds “what is timely will depend on the circumstances of the particular case.” Counsel for Respondent represents in the accompanying affidavit that the quantity of documents to be produced (nearly 4,500) were considerably in excess of that anticipated. Respondent’s counsel states the documents were in his possession in late February. The approximate 30-day delay in transmitting the documents was attributed to intervening activities of counsel, assembly of the documents and the necessity for duplication. Although counsel acknowledges delay in providing the documents, he points out that they were provided prior to the hearing date and that Appellant filed to request any specific order from the Board for earlier disclosure. Respondent further argues that as a technical matter, there has been no violation of an order of the Board, and that the sanction requested, i.e., granting of the appeal, is not appropriate, and should be denied.

The Board’s Rules provide that the Board may, when a party refuses or fails to obey an order of the Board, impose sanctions which it considers “necessary to the just and expeditious conduct of the appeal.” 39 C.F.R. § 955.34. The granting of an appeal or the entry of a default judgment without a consideration of the merits of an appeal is an extreme and drastic sanctions. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43 (1976); Bula Forge, Inc., PSBCA No. 1490, 86-3 BCA ¶ 19,316; Shorthaul Trucking Co.,, PSBCA No. 1046, 84-1 BCA ¶ 17,012. Such sactions will not be imposed in the absence of extreme circumstances. United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912-13 (9th Cir. 1986).

In this matter the delayed furnishing of the documentary information resulted in the cancellation of a scheduled hearing. The hearing had been twice previously postponed because the parties underestimated the time required for discovery. Respondent has now provided the documents. Despite the delay in proceeding to a hearing, there appears to be no prejudice or irreparable harm suffered by Appellant. While some delay existed on Respondent’s part in providing the documents, the magnitude of the discovery request, as evidence by approximately 4,500 documents provided to Appellant, certainly contributed to the delay. Although the Board does not condone the delay, the conduct complained of is not so extreme and willful as to warrant a judgment on the merits as a sanction against Respondent.

Accordingly, Appellant’s Motion, to the extent it requests the Board to issue an order to show cause or to grant the appeal, is denied.

Appellant also has requested additional sanctions be imposed against Respondent, including attorney fees and costs for prosecution of the motion. The Board is not aware of any authority to grant the requested award of attorney fees and costs and Appellant cites only to 39 C.F.R. § 955.34. In the absence of a statutory provision the Board has no authority to award attorney fees or costs. Shorthaul Trucking Co., PSBCA No. 1046, supra; Albert Maturo, PSBCA No. 1029 (Nov. 16, 1982). The Board’s Rule on sanctions (§ 955.34) does not provide the requisite authority. Id.; Southwest Marine, Inc., DOT CAB Nos. 1497, 1577, 1645-1666, 1687, 1704-1725, 86-2 BCA ¶ 18,773. Attorney fees and certain costs may be granted only in certain circumstances under the Equal Access to Justice Act, 5, U.S.C. § 504, and its implementing regulations, 39 C.F.R. Part 960, as amended, 52 Fed. Reg. 6797. Further, any award under this statute may be made only following a final decision in a Board proceeding. There is accordingly no basis to grant an award of attorney fees or costs.

Appellant’s Motion for an Order to Show Cause and for Granting of Appeal for Respondent’s Failure to Defend is denied.

James E. Lemert

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman