December 16, 1997
Appeal of
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 4068
APPEARANCE FOR APPELLANT:
Alan B. Rich, Esq.
APPEARANCE FOR RESPONDENT:
Robert P. Faust, Esq.
Gary Shapiro, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
This appeal was dismissed with prejudice for Appellant’s failure to prosecute. After the dismissal, Appellant requested that the dismissal be converted to one without prejudice, alleging that it had not appealed the contracting officer’s final decision and that, therefore, the Board did not have jurisdiction. Both parties submitted briefs.
FINDINGS OF FACT
1. Appellant leases the McAllen, Texas Post Office to Respondent under a lease first entered into in 1958 (Appeal File A).
2. On January 31, 1997, the contracting officer issued a final decision asserting a Postal Service claim against Appellant in the amount of $361,769.85. The contracting officer claimed that the building had become untenantable due to Appellant’s failure to maintain the roof, causing the post office to vacate the building. Respondent sought to recover its costs associated with obtaining alternate quarters, and the final decision advised that Respondent intended to recover the amount of the claim, plus interest, by making deductions from the rent owed on this and a number of other properties Respondent leased from Appellant. (Appeal File C-50).
3. The contracting officer’s letter included the final paragraph advising Appellant of its rights to appeal the decision:
“This is the final decision of the contracting officer. You may elect to appeal this decision to the Postal Service Board of Contract Appeals pursuant to the Contract disputes Act of 1978. If you decide to appeal, mail or otherwise furnish written notice (preferably in triplicate) to the contracting officer within 90 days from the date you receive this decision. The notice should identify the contract by number, reference this decision, and indicate that an appeal is intended. Alternatively, you may elect to bring an action directly in the United States Court of Federal Claims within 12 months from the date you receive this decision.” (Id.)
4. On March 7, 1997, Appellant sent Respondent the real estate tax bills for the post office premises and asked that Respondent reimburse appellant as required by the tax provision of the lease.
5. On March 18, 1997, in a letter from Jeanne Greenwood, Respondent replied to Appellant’s March 7 letter, advising that based on the contracting officer’s letter of January 31, 1997, Respondent would pay only 20 per cent of the real estate taxes.
6. On March 21, 1997, Appellant wrote to the contracting officer as follows:
“Subject: Past Due Rent
We received a letter from Jeanne Greenwood stating that the Postal Service intends to pay only 20% ($1,622.13) of the amount that was billed for additional rent in the form of reimbursement of paid real estate taxes for the above referenced [McAllen, Texas] post office.
Additionally, there is a balance due of $1,000 for February rent (see invoice attached).
We do not accept the findings of your decision of January 31, 1997. Let this letter serve as a demand for past due rent as follows:
Unpaid February rent $1,000.00
Full amount of real estate taxes
paid $8,110.66
Total $9,110.66
If this amount is not paid within ten days, we will have no choice but to cancel the lease and commence eviction proceedings.”
7. The contracting officer forwarded a copy of Appellant’s March 21, 1997 letter and the earlier correspondence (Findings 4, 5) to the Board, and by letter dated March 24, 1997, advised Appellant that he had done so. On April 1, 1997, the matter was docketed as PSBCA No. 4068.
8. a copy of the Board’s rules and a Notice of Docketing and Complaint Due Date was sent to appellant advising that its complaint was due on or about May 5, 1997. Appellant received the Notice on April 4, but did not file a Complaint or other response.
9. By orders of May 28, 1997, and June 24, 1997, the Board advised Appellant that its Complaint was overdue and directed appellant to file its complaint. Appellant received the orders but made no response to the Board.
10. On July 11, 1997, the Board issued an Order to Show Cause requiring Appellant to file its Complaint or show cause why the appeal should not be dismissed with prejudice for Appellant’s failure to prosecute. The Order concluded, “A failure to file the Complaint or show such cause by August 8, 1997, will result in the dismissal with prejudice of this appeal.” Appellant received the Order on July 16 but did not respond.
11. On August 22, 1997, after receiving no response of any kind from Appellant, the Board dismissed the appeal with prejudice for Appellant’s failure to prosecute. Appellant received the dismissal on or about August 25.
12. On August 29, 1997, Appellant sent the Board the following letter:
“Subject: Dismissal
Appellant previously informed Respondent’s Counsel and the Board that he did not request that a case be brought before the Board.[[1]] This case was brought before the Board by the Contracting Officer, Marcus Nielsen, because he thought that Appellant wanted him to do so, but he was never given such a request by the Appellant.
Appellant requested that the case be withdrawn, even though he did not initiate the case. Please reconsider the dismissal Order.”
DECISION
Appellant argues that it did not appeal the contracting officer’s January 31, 1997 final decision and that the Board, therefore, does not have jurisdiction over the appeal and must dismiss it without prejudice. Appellant contends that its March 21, 1997 letter was not an appeal and that the contracting officer erroneously forwarded it to the Board for docketing.
Respondent argues that Appellant should not be able to claim a lack of jurisdiction when it failed to object before the appeal was dismissed despite the many Board orders requiring it to file its complaint and the board’s warning that a failure to respond would result in dismissal with prejudice. It further argues that the March 21 letter reflects Appellant’s intent to appeal the final decision. Respondent finds support for its conclusion in the language of the letter and, additionally, in the following circumstances: (1) Appellant has filed many other appeals with the Board; (2) the March 21 letter was filed within the 90-day period allowed for appeals and requested payment of the rent and real estate taxes within ten days, the period allowed by Board rules for the contracting officer to forward a notice of appeal to the Board; (3) Appellant did not respond when advised that the matter had been forwarded to the Board and docketed and when ordered by the Board to file its Complaint or face dismissal; and (4) Appellant sought legal advice regarding this appeal. Respondent contends the Board had jurisdiction over the appeal and that the dismissal for failure to prosecute was proper.
Jurisdiction is a matter that may be raised for the first time at any point in litigation, even on appeal. Wayne R. Hilf, PSBCA No. 2800, 91-1 BCA ¶23,628; Joe E. Woods, Inc., DOT BCA No. 2777, 96-2 BCA ¶28,551. “The Board cannot disregard the question of its statutory authority to hear and decide a dispute, regardless of when the question is raised.” Wayne R. Hilf, PSBCA No. 2800, 91-1 BCA ¶23,628 citing Technassociates, Inc. v. United States, 14 Cl.Ct. 200, 208 (1988). Accordingly, we may address Appellant’s challenge to our jurisdiction first asserted on reconsideration notwithstanding the lateness of the challenge and notwithstanding the earlier developments in the appeal that led to its dismissal with prejudice for appellant’s failure to prosecute.
Unless Appellant has elected to appeal the final decision to the Board, we have no jurisdiction over Respondent’s affirmative claim against Appellant asserted in the contracting officer’s January 31, 1997 final decision. See 41 U.S.C. §605(b); Commercial Energies, Inc., ASBCA No. 47106, 96-2 BCA §28,474 at 142,207; Consolidated Marketing Network, Inc., ASBCA No. 37740, 89-3 BCA ¶22,00 at 110,612 citing Holly Corp., ASBCA No. 24975, 80-2 BCA ¶14,675. Therefore, we must determine whether Appellant, through its March 21 letter or otherwise, has appealed the contracting officer’s January 31 final decision.
The final paragraph of the contracting officer’s final decision advised Appellant that it could file an appeal by sending him written notice of its intent to appeal (Finding 3). To constitute an appeal, a written notice must state Appellant’s dissatisfaction with the final decision and express Appellant’s intention to appeal the contracting officer’s action to a higher authority. See Ledgewood Properties, Inc., PSBCA 4062, September 4, 1997; J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1; BCA ¶28,964; Hubbard Trucking, Inc. PSBCA No. 3790, 97-1 BCA ¶28,913 (1995). While Appellant expressed its dissatisfaction with the contracting office er’s final decision, the March 21 letter does not state clearly whether Appellant intended it to be a notice of appeal to the Board. However, Appellant’s threat to cancel the lease and commence eviction proceedings suggests not only that an appeal to the Board was not intended but rather reflects an intent to proceed in another forum, because the Board lacks authority to order eviction as a remedy even if it were to find in Appellant’s favor. See N.J. Hastetter, Trustee for Thomas and Judith Hastetter, PSBCA No. 3064, 92-3 BCA ¶25,189; cf. Kelley v. United States, 19 Cl.Ct. 155 (1989).
Since the letter itself is not clear regarding whether Appellant wished to appeal the final decision to the Board, subsequent statements and conduct, at a time before the issue was the subject of a dispute between the parties, are entitled to significant weight in determining Appellant’s intent, see Ledgewood Properties, Inc., PSBCA No. 4062; September 4, 1997, slip op. at 7; J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶28,964 at 144,250. Appellant took no actions that would suggest that it intended the letter to be a notice of appeal. See J. Leonard spdek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶28,964. It did not file any documents in the appeal until it submitted its August 29 letter asking that the dismissal be reconsidered. Appellant’s conduct in this appeal contrasts sharply with the circumstances in Auburn Flying Service, PSBCA Nos. 1509, 1510, 86-3 BCA ¶ 19,273 and Hubbard Trucking, Inc., PSBCA No. 3790, 97-1 BCA ¶28,913 (1995), cases relied upon by Respondent to demonstrate that Appellant’s March 21 letter was a notice of appeal. As we stated in J. Leonard Spodek d/b/a Alabama Postal Holdings, PSBCA No. 3932, 97-1 BCA ¶28,964 at 144,250, “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 office a letter constituting a notice of appeal. . .” Moreover, on one or two occasions before the current appeal was dismissed, Appellant’s principal stated to Respondent’s counsel that Appellant did not intend to appeal the contracting officer’s final decision to the Board (Finding 12, fn. 1).[2]
While advising the Board promptly of its intention would have been reasonable and responding to the Board’s orders prudent, Appellant’s failure to do so, under the circumstances of this case, does not show that its March 21 letter was intended as an appeal. Additionally, that Appellant has appealed other final decisions to the Board does not prove that its intention in this appeal was the same, and that it may have sought to obtain legal advice regarding this appeal does not indicate that it did so intending to pursue the appeal as opposed to seeking a timely dismissal or taking other action. Finally, that the letter was sent within 90 days after the issuance of the final decision and requested payment within 10 days does not establish that an appeal was intended.
Accordingly, as Appellant did not appeal the contracting officer’s final decision to the Board,[3] we are without jurisdiction over this appeal and were when the appeal was dismissed for failure to prosecute.[4] Accordingly, reconsideration is granted, the dismissal for failure to prosecute is vacated, and the appeal is dismissed for lack of jurisdiction.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Notwithstanding this representation, until filing the
August 29 letter, Appellant had not contacted the Board and, specifically, had
not advised the Board that Appellant did not wish to appeal the final
decision. In response to the Board’s
order directing Appellant to demonstrate that it had provided such notice to
the Board, Appellant’s counsel admitted that Appellant had not done so. However, as stated in the letter,
Appellant’s principal orally advised Respondent’s counsel on one or two
occasions before the dismissal of the appeal that Appellant did not intend to
appeal the contracting officer’s final decision to the Board (Respondent’s
Memorandum in Opposition to Appellant’s Request for Reconsideration, pp. 9-10;
Respondent’s Response to Appellant’s Letter Brief and Reply Brief, p. 11).
[2] In deciding whether a letter is a notice of appeal, we would generally be reluctant to give much weight to the appellant’s statements of what it intended made after the letter’s meaning was in dispute. However, in this case, the statements to Respondent’s counsel were made before the efficacy of the March 21 letter as a notice of appeal had been raised as an issue in this proceeding.
[3] We note that, notwithstanding our conclusion that the
March 21 letter did not constitute a notice of appeal, the contracting officer
acted properly in forwarding it to the Board.
See Allee Constr. Co., PSBCA No. 2462, 90-2 BCA ¶22,700 at
114,001; 39 C.F.R. §955.4. Any
correspondence that might be considered a notice of appeal in any form is to be
forwarded to the Board where its validity will be addressed as necessary.