January 30, 1995

Appeal of

TLC DISTRIBUTORS, INC.

Under Contract No. 115859-89-P-0440

PSBCA No. 3404

APPEARANCE FOR APPELLANT:

Stephany Carr

APPEARANCE FOR RESPONDENT:

Glenn L. Smith, Esq

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            Respondent, United States Postal Service, has filed a timely motion for reconsideration of the Board's January 3, 1995, dismissal of the appeal without prejudice.  Respondent alleges in its motion that the Board inadvertently dismissed the appeal without prejudice under 39 C.F.R. §955.31 instead of dismissing the appeal with prejudice for failure to prosecute under 39 C.F.R. §955.32.  Alternatively, Respondent contends that a dismissal without prejudice under  39 C.F.R. §955.31 is inappropriate and that a dismissal with prejudice under 39 C.F.R. §955.32 is warranted.

            In support of its contention that the dismissal without prejudice was inadvertent, Respondent refers to the Board's Order of December 12, 1994, as notifying Appellant, acting through a Trustee In Bankruptcy, that the appeal would be dismissed in accordance with 39 C.F.R. §955.32.  In fact, the Board's Order advised the Trustee that the appeal would be "dismissed without prejudice" and inadvertently referred to 39 C.F.R. §955.32 rather than §955.31.  Although the Board's order was admittedly confusing, the Board intended the dismissal to be without prejudice and clearly so stated in the dismissal itself.  Accordingly, Respondent's contention that the Board inadvertently dismissed the appeal without prejudice is without merit.

            Respondent's contention that a dismissal without prejudice is not warranted in this appeal is also without merit.  Appellant is clearly in bankruptcy and no showing has been made that the United States Bankruptcy Court order lifting the Chapter 11 automatic stay applies to the Chapter 7 proceeding.  Absent such showing the Board is not confident it can presently proceed with the disposition of the appeal or that it will be in a position to proceed in the near future.  Thus, the Board properly exercised its discretion to dismiss the appeal without prejudice under 39 C.F.R. §955.31, rather than dismissing the appeal with prejudice under 39 C.F.R. §955.32.

            Respondent has not demonstrated that the Board erred in dismissing the appeal under 39 C.F.R. §955.31.  Accordingly, Respondent's Motion for Reconsideration is denied.

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman

I concur:

David I. Brochstein

Administrative Judge

Board Member