April 23, 1997
Appeal of
J. LEONARD SPODEK d/b/a ALABAMA POSTAL HOLDINGS
LEASE AGREEMENTS
PSBCA No. 3932
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Gary Shapiro, Esq.
OPINION OF THE BOARD
Appellant, J. Leonard Spodek, d/b/a Alabama Postal Holdings, has appealed the decision of the contracting officer denying his claim for restoration damages allegedly resulting from the termination of a lease between Appellant and the United States Postal Service. This appeal is being decided on the record in accordance with 39 C.F.R. §955.12.
FINDINGS OF FACT
1. Respondent, the United States Postal Service, entered into a lease with Appellant’s predecessor-in-interest on January 1, 1988, for a postal facility in Newton, Alabama. The lease had a five year term and a rental rate of $275.00 per month. The lease provided Respondent the right to terminate the lease on thirty days notice. (Appeal File (AF) Tab 1).
2. Paragraph 5 of the lease provides:
“Alterations. The Postal Service may make alterations, attach fixtures or signs and erect structures in or upon the premises, all of which shall be the property of the Postal Service and, if the Lessor requests, by notice in writing, within 30 days before termination of the Lease, the Postal Service will repair promptly or provide the Lessor payment in lieu thereof for any damage caused by its removal of such property.” (AF 1).
3. Appellant purchased the Newton Post Office facility on August 16, 1991, and notified Respondent of this fact on September 12, 1991 (AF 20).
4. On May 7, 1992, Respondent notified Appellant that it was terminating the lease effective June 10, 1992 (AF 15). Respondent vacated the post office in May or early June 1992, and relocated to a new facility (AF 16, 17; Declaration of Ken Maddox).
5. On October 29, 1992, Appellant sent a letter to the contracting officer stating that “under paragraph 5 of the expired lease, please provide payment for any alterations made by the United States Postal Service. . . ” (AF 13).
6. By letter dated December 31, 1992, the contracting officer advised Appellant that Respondent had no liability for restoration, and invited Appellant to present evidence of damage other than ordinary wear and tear (AF 12).
7. On September 17, 1993, Appellant submitted to Respondent a letter containing copies of photographs purporting to show restoration damage to the facility (AF 7, 8).
8. By letter dated September 24, 1993, the contracting officer informed Appellant that restoration must be requested, in writing, at least 30 days before termination of the lease, and that a review of the file shows no such timely request from Appellant. The contracting officer further informed Appellant that he considered any question of restoration of the Newton facility by the Postal Service to be a closed issue. (AF 7).
9. By letter dated August 11, 1995, Appellant notified the contracting officer that it considered its letter of September 17, 1993, to be its restoration notice and requested that compensation be made even though notice was not made “as per the lease” (AF 9).
10. On October 3, 1995, the contracting officer issued a final decision denying Appellant’s request for compensation on the Newton facility. The letter informed Appellant it was the “final decision” of the contracting officer regarding Appellant’s claim for restoration or compensation in lieu of restoration and further informed Appellant of his appeal rights. (AF 6) It was received by Appellant on October 9, 1995 (AF 34).
11. By letter dated November 16, 1995, to the contracting officer, Appellant again requested Respondent to pay for restoration damages on the Newton facility. Appellant acknowledged that Paragraph 5 of the lease required notice to the Postal Service within 30 days of lease termination. However, Appellant argued that the Postal Service was nevertheless responsible for damage done to the property, excluding normal wear and tear. Appellant requested Respondent to either repair or reimburse for the cost of repairs to the property. (AF 5).
12. By letter dated December 7, 1995, the contracting officer responded to this latest letter from Appellant and again stated that the request for restoration was untimely. The letter concluded by stating that the contracting officer’s letter of October 3, 1995, “stands as my final decision in this matter.” (AF 4).
13. On February 9, 1996, 123 days after receipt of the contracting officer’s October 3, 1995 final decision, Appellant submitted to the contracting officer an “appeal” of the contracting officer’s December 7, 1995, letter to Appellant (AF 3).
DECISION
Respondent argues that this appeal should be dismissed for lack of jurisdiction since Appellant failed to file his appeal within 90 days of receiving the contracting officer’s final decision. Respondent further argues that, if jurisdiction is found to exist, the appeal should nevertheless be denied because Appellant failed to notify Respondent of its restoration obligation within 30 days of lease termination, as required by the lease. On the merits, Respondent argues that there is no evidence of any additions to the property that require restoration and no evidence of damage to the property as a whole, other than ordinary wear and tear. Although afforded the opportunity to do so, Appellant did not submit any evidence or make any arguments in this record submission.
The threshold issue in this appeal is whether the Board has jurisdiction to hear this appeal. For the reasons set forth below, we conclude that Appellant failed to file his appeal within the time allowed and, therefore, dismiss the appeal for lack of jurisdiction.
Under the Contract Disputes Act of 1978, as amended, an appeal to an agency board of contract appeals must be filed within 90 days from receipt of a contracting officer’s final decision. 41 U.S.C. §606. The 90-day period is jurisdictional and cannot be waived by a board. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Jeff W. Loder, PSBCA No. 2771, 90-3 BCA ¶ 23,159; Conquest Construction, Inc., PSBCA No. 2637, 90-2 BCA ¶ 22,682.
The contracting officer’s final decision herein was issued on October 3, 1995, and received by Appellant on October 9, 1995 (Finding of Fact (FOF) 10). Appellant did not file its appeal with this Board until February 9, 1995, 123 days after receipt of the final decision and well after the 90-day statutory period (FOF 13). On these facts, Appellant’s appeal is untimely and must be dismissed for lack of jurisdiction.
Under certain circumstances the “finality” of a final decision can be vitiated where the contracting officer’s actions constitute an agreement to reconsider the decision. See William G. Barnes & Son, Inc., PSBCA No. 3405, (November 12, 1993); Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 92-2 BCA ¶ 24,822; Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915. The contracting officer’s final decision in this appeal was received by Appellant on October 9, 1995 (FOF 10). Appellant’s subsequent letter of November 16, 1995, raised the same issues the contracting officer had addressed in the final decision (FOF 9). However, this letter did not ask for reconsideration of the October 3, 1995, final decision. In fact, it did not even reference the final decision. Furthermore, the contracting officer’s response on December 7, 1995, did not indicate any intent to reconsider the earlier final decision, but simply reiterated the contracting officer’s earlier position and concluded by stating that the October 3, 1995, letter “stands as my final decision in this matter.” This should have been sufficient to apprise Appellant that the 90-day period referred to in the October 3, 1995, letter was running and that, if he intended to appeal that final decision to this Board, he must do so within 90 days of October 9, 1995. The factors necessary to find that the contracting officer indicated an intent to reconsider his final decision are not present in these circumstances. See Environmental Protection Roofing, Inc., ASBCA No. 48267,
95-2 BCA ¶ 27,703.
We also consider whether Appellant’s letter of November 16, 1995, itself, constitutes a notice of appeal. A notice of appeal need not be in any particular form. The notice must, however, evidence disagreement with the final decision and indicate an intent to appeal the decision to a higher authority. Auburn Flying Service, PSBCA Nos. 1509, 1510, 86-3 BCA ¶ 19,273; Hubbard Trucking, Inc., PSBCA No. 3790 (September 19, 1995).
Auburn and Hubbard establish a very lenient standard for finding an intent to appeal a final decision. Nevertheless, the facts at issue in the instant appeal distinguish it from what occurred in those appeals and prevent us from finding that the November 16 letter constitutes a valid notice of appeal. The primary distinction between Auburn and Hubbard and this appeal is that subsequent correspondence and arguments filed on appeal in Auburn and Hubbard made it clear that the contractors therein believed they had timely submitted to the contracting officer a letter constituting a notice of appeal of the decision to terminate their contract. In this appeal, Appellant’s letter to the contracting officer on November 16, 1995, does not even reference the contracting officer’s final decision, much less ask the contracting officer to reverse his decision. Furthermore, Appellant’s letter of February 9, 1996, which initiated this appeal, does not give any indication that Appellant considered its November 16, 1995, letter to have been a notice of appeal.
Even if Appellant’s November 16 letter is read as an expression of disagreement with the final decision, it contains no suggestion that Appellant was requesting or even contemplating an appeal to any higher authority. Finally, we note that, unlike Auburn and Hubbard, Appellant has not argued that he intended the November 16 letter to be an appeal of the contracting officer’s decision, even when faced with notice in the Answer that Respondent intended to argue timeliness and arguments in Respondent’s brief that attacked, in detail, the timeliness of the notice of appeal.
Having failed to file his appeal within 90 days of receipt of the contracting officer’s final decision, this appeal is dismissed for lack of jurisdiction.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman