April 13, 1995

Appeal of

TOM KIME

Under Contract Nos. 059990-91-P-0443; 059990-91-P-0881; 059990-91-P-0708

PSBCA No. 3480

APPEARANCE FOR PETITIONER:

Tom Kime

APPEARANCE FOR RESPONDENT:

Robert E. O'Connell, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            Appellant has filed a Motion for Reconsideration of the Board's January 31, 1995 decision, Tom Kime, PSBCA No. 3480  BCA , which denied his appeal.  In support of his motion Appellant contends (1) that the Opinion's Findings of Fact erroneously omitted certain facts which Respondent had admitted pursuant to Appellant's Request for Admission of Facts; (2) that Respondent flouted the Board's Rules of Practice and (3) that the Occidental Postmaster falsely verified an allegation of fact.  Respondent elected not to respond to Appellant's motion.

            Contrary to Appellant's contention, Respondent did not admit the requested admissions of fact.  Counsel for Respondent denied three of them and advised Appellant that the fourth was not relevant to the disposition of the appeal.  Respondent's answer to the requested admissions was untimely filed, but the late filing was excusable due to counsel's interpretation of an Order of the Board dated January 19, 1994.  Thus, the untimely filing did not constitute an admission of the requested facts.[1]  The fourth requested admission - that Appellant's notice of appeal was not forwarded by the Contracting Officer to the Board - does not constitute a basis for granting Appellant's appeal, nor is it in any way material to the merits of the dispute between the parties.

            In regard to Appellant's second contention, there is no basis in the record that counsel for Respondent "flouted" the Board's Rules of Practice.  The contention has no merit.

            The fact which Appellant contends was falsely verified by the Occidental Postmaster pertains to whether Appellant failed to report to perform cleaning services on September 19, 1991 (Finding of Fact No. 6).  Appellant contends he did report; the postmaster contends he did not.  The postmaster submitted a declaration under penalty of perjury which stated Appellant failed to report to work on September 19, 1991.  Another declaration was submitted by the Graton Postmaster which stated Appellant did not report to the Graton facility on September 19, 1991.  Appellant submitted no evidence in support of his position.  The evidence in the record thus supports the finding that Appellant did not perform his contract services on September 19, 1991.  Finding of Fact No. 6 is therefore affirmed.  Moreover, even if Appellant had performed the cleaning services on that day, there is sufficient other evidence in the record to support the termination action.

            While Appellant disagrees with the Board's decision, he has shown no factual or legal error which would require the Board to change its decision.  B.C. Topps d/b/a B.C. Topps Transport, PSBCA No. 2241, 89-2 BCA ¶  21,764.  The Motion for Reconsideration is denied.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

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[1]39 C.F.R. §955.16(b) provides in part in regard to admission of facts:

"Within 30 days after service, the party served shall answer each requested fact or file objections thereto.  The factual propositions set out in the request shall be deemed admitted upon the failure of a party to respond to the request for admission."