July 17, 1998
Appeal of
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA Nos. 4016-17; 4019-24; 4026-29; 4031, 4035 and 4059
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCES FOR RESPONDENT:
Gary E. Shapiro, Esq.
Samuel J. Schmidt, Esq.
Robert P. Faust, Esq.
Melinda Varszegi, Esq.
OPINION OF THE BOARD ON MOTIONS FOR RECONSIDERATION
Each of the captioned appeals was dismissed with prejudice for Appellant’s failure to prosecute. On August 12, 1997, Appellant filed a motion for reconsideration applicable to each of the appeals in which it seeks relief from the dismissals based on the alleged failure of an attorney to take action to prosecute the appeals.
Each appeal originated when Appellant filed a notice of appeal from a contracting officer’s final decision asserting a Postal Service claim against Appellant under post office leases. The contracting officer forwarded each notice of appeal to the Board, and the Board docketed each as a separate appeal. In each of the appeals, the Board supplied Appellant with a copy of the Board’s rules and notified Appellant that it was to file a complaint within 30 days after its receipt of the docketing notice. Appellant failed to file complaints notwithstanding subsequent Board orders issued in each appeal directing it to do so, and, finally, the Board issued an order in each directing Appellant to file the complaint or show cause why the appeal should not be dismissed with prejudice for Appellant’s failure to prosecute.[1] When no response was received within the time allowed in the order to show cause, each of the appeals was dismissed with prejudice.[2]
In each appeal, the only document Appellant filed after the Board docketed the notice of appeal was one motion for reconsideration, referring to all of the appeals, that was filed after the appeals had been dismissed for failure to prosecute. The Board’s rules require that motions for reconsideration be filed within 30 days after the movant receives a copy of the decision (39 C.F.R. §955.30), and, except for PSBCA Nos. 4024 and 4031, the motion was not filed within 30 days after Appellant received a copy of the dismissal. Thus, the motions in all but PSBCA Nos. 4024 and 4031 were not filed timely. See Central Ohio Building Co., PSBCA No. 2742, 92-1 BCA ¶ 24,670; Buckner & Moore, Inc., ASBCA No. 44113, 93-3 BCA ¶ 26,085. While this decision, therefore, addresses only PSBCA Nos. 4024 and 4031, the pertinent circumstances of the remaining appeals are the same, and the reasoning below regarding PSBCA Nos. 4024 and 4031 applies to the remaining appeals as well.
Appellant contends that the reason it failed to file its complaints and respond to the Board’s orders was that it was in the process of hiring an attorney that it expected would handle the matters before the Board and that the attorney failed to perform as expected. To satisfy the requirement for a complaint, Appellant need only make a filing setting out its position on the matter appealed.[3] Appellant’s principal has prosecuted a number of appeals before this Board and filed complaints without counsel. As Appellant is aware from its experience with other appeals before the Board, representation by an attorney is not necessary to prosecute an appeal.[4] See Airborne Industries, Inc., ASBCA Nos. 45491 et al., 95-1 BCA ¶ 27,496, aff’d on recon. at ¶ 27,411; Respiratory Therapy Homecare Center, Inc., VABCA No. 2711-R, 89-3 BCA ¶ 22,169. Additionally, the evidence Appellant offers in support of its motion--what purports to be correspondence with an attorney--does no more than show the efforts Appellant allegedly made, commencing in May of 1997, to obtain counsel. It does not suggest how those efforts or any conduct or lack of action by the attorney prevented Appellant from responding to the Board’s orders or at least seeking an extension of the period for filing the complaints. Thus, its suggestion that it could not file the complaints (or seek an extension) until it concluded arrangements with the attorney is unconvincing.
Furthermore, even if Appellant did retain counsel, it voluntarily chose this attorney as its representative in these appeals, and it cannot now avoid the consequences of the acts or omissions of this freely selected agent. See Link v. Wabash Ry. Co., 370 U.S. 626, 633-634, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962), reh. denied, 371 U.S. 873 (1962). Appellant cannot rely on its attorney’s failure to comply with the Board’s orders as an excuse for its own failure when the ordered action was unmistakably clear and the result of noncompliance was equally clear. [5]
Appellant bears the burden of prosecuting its appeals with due diligence. Mac-In-Enry, Inc., ASBCA No. 28689, 88-1 BCA ¶ 20,359, aff’d 862 F.2d 321 (Fed. Cir. 1988) (Table). If Appellant desired to retain counsel to prosecute the appeals and needed more time to do so, it could have, and should have, so advised the Board and requested an enlargement of time for taking required actions. Instead, Appellant made absolutely no response in any of these appeals. Notwithstanding the Board’s repeated directions to file a complaint in each case and the clear warning that Appellant faced dismissal with prejudice in each of the appeals, it still made no response. Appellant’s failure to respond to any of the orders in these appeals could only be interpreted as an intent not to prosecute the appeals.
In view of Appellant’s continual disregard of the Board’s orders directing it to file its complaints, dismissal of the appeals with prejudice was appropriate. 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’s motion offers nothing that would cause us to change our dismissals with prejudice.[6] See Respiratory Therapy Homecare Center, Inc., VABCA No. 2711-R, 89-3 BCA ¶ 22,169; Garthco Corp., ASBCA No. 25860, 82‑2 BCA ¶ 15,875. On reconsideration, the dismissals of the captioned appeals are affirmed.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
APPENDIX
|
Appeal No. |
Original Complaint Due Date |
First Extended Due Date |
Second Extended Due Date |
Order to Show Cause Issued |
Date of Required Response |
Date of Dismissal with Prejudice |
Date Appellant Received Dismissal |
|
4016 |
12/26/96 |
2/18/97 |
4/14/97 |
4/28/97 |
5/16/97 |
5/30/97 |
6/2/97 |
|
4017 |
12/26/96 |
2/18/97 |
4/14/97 |
4/28/97 |
5/16/97 |
5/29/97 |
6/2/97 |
|
4019 |
12/26/96 |
2/14/97 |
3/24/97 |
4/15/97 |
5/13/97 |
5/28/97 |
6/4/97 |
|
4020 |
12/26/96 |
2/14/97 |
3/24/97 |
4/15/97 |
5/13/97 |
5/28/97 |
6/2/97 |
|
4021 |
12/26/96 |
2/14/97 |
3/24/97 |
4/15/97 |
5/13/97 |
5/28/97 |
6/2/97 |
|
4022 |
12/26/96 |
2/14/97 |
3/24/97 |
4/15/97 |
5/13/97 |
5/28/97 |
6/2/97 |
|
4023 |
12/26/96 |
2/14/97 |
3/24/97 |
4/15/97 |
5/13/97 |
5/28/97 |
6/2/97 |
|
4024 |
12/26/96 |
2/14/97 |
3/24/97 |
5/28/97 |
6/25/97 |
7/8/97 |
7/14/97 |
|
4026 |
1/16/97 |
3/11/97 |
4/15/97 |
4/28/97 |
5/16/97 |
5/29/97 |
6/2/97 |
|
4027 |
1/16/97 |
2/24/97 |
4/15/97 |
4/28/97 |
5/16/97 |
5/29/97 |
6/2/97 |
|
4028 |
1/16/97 |
2/24/97 |
4/15/97 |
4/28/97 |
5/16/97 |
5/29/97 |
6/2/97 |
|
4029 |
1/21/97 |
3/3/97 |
4/23/97 |
5/2/97 |
6/2/97 |
6/9/97 |
6/24/97 |
|
4031 |
1/23/97 |
3/3/97 |
4/14/97 |
5/28/97 |
6/25/97 |
7/8/97 |
7/14/97 |
|
4035 |
2/21/97 |
3/31/97 |
4/25/97 |
5/2/97 |
5/16/97 |
5/28/97 |
5/30/97 |
|
4059 |
4/14/97 |
5/16/97 |
|
5/28/97 |
6/13/97 |
6/23/97 |
6/27/97 |
[1] In each of the cases but one, the Board issued two orders noting the complaint was overdue and setting a new deadline for its submission before the order to show cause was issued. In PSBCA No. 4059, only one order was issued establishing a new deadline for filing the complaint.
[2] The chronology for each case is set out in the appendix to this Opinion.
[3] The Board’s rules describe the requirement that Appellant file a complaint as follows:
“Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and one copy of a complaint setting forth simple, concise and direct statements of each of his claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint although no particular form or formality is required.” 39 C.F.R. §955.7 (a).
[4] “An individual appellant may appear before the Board in person, a corporation by an officer thereof, a partnership or joint venture by a member thereof, or any of these by an attorney at law duly licensed in any State, commonwealth, territory, or in the District of Columbia. An attorney representing an appellant shall file a written notice of appearance with the Board.” 39 C.F.R. §955.27.
[5] Just as they do not excuse Appellant’s failure to respond to the Board’s orders, Appellant’s efforts to obtain legal counsel do not excuse its failure to request reconsideration of the Board’s dismissals of the appeals within the time limit set by the Board rules. See Respiratory Therapy Homecare Center, Inc., VABCA No. 2711-R, 89-3 BCA ¶ 22,169.
[6] By letters of July 15 and 16, 1998, Appellant has asserted that reconsideration of four of the appeals, PSBCA Nos. 4016, 4017, 4024 and 4028, should be granted because it did not receive an appeal file in those appeals and thus could not file its complaints. The record in these reconsiderations is long closed, see Order dated October 9, 1997, and these new assertions submitted at this late date will not be considered. Furthermore, the Board’s files reflect that an appeal file was filed in each of the four appeals and that Appellant was sent and received timely notice from the Board when each was filed.