November 25, 1998

Appeal of

NATIONWIDE POSTAL MANAGEMENT

LEASE AGREEMENT

PSBCA No. 4120

APPEARANCE FOR APPELLANT:

James L. Quarles, III, Esq.

APPEARANCE FOR RESPONDENT:

Gary Shapiro, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            This appeal was originally dismissed with prejudice on March 31, 1998, for Appellant’s failure to prosecute.  On July 30, 1998, the Board denied Appellant’s request that we reconsider the dismissal.  On September 2, 1998, Appellant filed a Motion for Reconsideration of the Board’s Denial of Reconsideration and Motion to Reinstate Appeal, asking the Board again to reconsider its dismissal and to reinstate the appeal.

Appellant argues that no prejudice to Respondent would result from reinstatement of the appeal and that dismissal with prejudice was too drastic a sanction for Appellant’s conduct in this appeal.  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 this appeal dismissal with prejudice for Appellant’s failure to prosecute was warranted.  The July 30, 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 failure to file a complaint or respond in any fashion to the Board’s many orders in the appeal directing it to file a complaint.  This chronology reflects Appellant’s flagrant disregard of the Board’s rules and orders and shows that the dismissal with prejudice of the appeal for failure to prosecute was clearly warranted.  Nationwide Postal Management, PSBCA Nos. 4016-17, 4019-24, 4026-29, 4031, 4035 and 4059, (October 29, 1998);  see also 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 dismissal with prejudice.[1]  Accordingly, Appellant’s motions are denied.

William K. Mahn

Administrative Judge

Board Member

I concur

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

---

[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.