October 29, 1998

Appeal of

NATIONWIDE POSTAL MANAGEMENT

PSBCA Nos. 4016-17, 4019-24, 4026-29, 4031, 4035 and 4059

LEASE AGREEMENT

APPEARANCE FOR APPELLANT:

James L. Quarles, III, Esq.

Kerry Pyle Rubin, Esq.

APPEARANCE FOR RESPONDENT:

Gary E. Shapiro, Esq.

Samuel J. Schmidt, Esq.

Robert P. Faust, Esq.

Melinda Varszegi, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Each of the captioned appeals was dismissed with prejudice for Appellant’s failure to prosecute. On July 17, 1998, the board denied Appellant’s request that we reconsider the dismissals. Appellant has filed a Motion for Reconsideration of the Board’s Denial of Reconsideration and Motion to Reinstate Appeals, asking the Board again to reconsider its dismissal and to reinstate the appeals.

Appellant argues that no prejudice to Respondent would result from reinstatement of the appeals and that dismissal with prejudice was to drastic a sanction for Appellant’s conduct in the appeals. Whenever possible, appeals before the board should be decided on their merits, and we agree that dismissal with prejudice for an appellant’s failure to prosecute is a drastic sanction. However, we are satisfied that in these appeals dismissal with prejudice for Appellant’s failure to prosecute was warranted. The July 17, 1998 denial of Appellant’s first motion for reconsideration sets forth in detail the chronology of Appellant’s consistent and repeated disregard of the requirements of the Board’s rules and its failures to respond in any fashion to the Board’s many orders in these appeals directing it to file complaints. This chronology reflects Appellant’s continual disregard of the Board’s orders directing it to file its complaints and shows that the dismissal with prejudice of the appeals was clearly warranted. See Sun Technical Services, Inc., ASBCA No. 48788, 96-1 BCA ¶28.075; Garthco corp., ASBCA No. 25860, 82-2 BCA ¶15,875; VIP Services of Kansas, GSBCA No. 6188, 81-2 BCA ¶15,353; Brown’s Janitorial Service, GSBCA No. 6146, 81-2 BCA ¶15,285; see also Fairfield Scientific Corp. v. United States, 228 Ct. Cl. 264, 655 F.2d 1062 (1981).

Appellant has not presented newly-discovered evidence or made arguments that would cause us to change our dismissals with prejudice.[1] Accordingly, Appellant’s motions are denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

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[1] The only new argument Appellant raised in its second reconsideration request is that Appellant should be granted relief because while the Board was considering the first reconsideration request Appellant’s time to appeal the original decision to the United States court of Appeals for the Federal Circuit may have run. Whether and when to file an appeal are decisions Appellant must make, and the disadvantage to Appellant, if any, stems from its decision not to file an appeal, not from the time necessary for the Board to decide Appellant’s first reconsideration motion.