October 29, 1998

Appeal of

J. LEONARD SPODEK

NATIONWIDE POSTAL MANAGEMENT

Under Lease Agreement

(Calhoun Falls, SC Post Office)

PSBCA No. 4236

APPEARANCE FOR APPELLANT:

J. Leonard Spodek

APPEARANCE FOR RESPONDENT:

Gary Shapiro, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

            Respondent, United States Postal Service, has filed a Motion to Dismiss this appeal alleging that the Board lacks jurisdiction because the notice of appeal was not timely filed.[1]  Although Appellant was granted a 30 day period to file a reply to Respondent's motion, no reply has been filed.  The following findings of fact are made for the purpose of deciding Respondent's motion.

FINDINGS OF FACT

1.  By letter dated December 10, 1996, the Contracting Officer notified Appellant in a final decision that he was indebted to Respondent under the Lease Agreement for the Calhoun Falls, South Carolina facility in the amount of $9,673.55 ($9,473.55, plus an additional $200 in administrative costs if the debt was not paid by December 23, 1996), plus interest.  The debt was for Appellant's failure to make necessary repairs to the facility following an electrical fire and for other deferred maintenance items that needed to be performed.  (Contracting Officer's decision).

2.  The final decision notified Appellant that he could either appeal the decision to the Postal Service Board of Contract Appeals within 90 days or, alternatively, bring an action directly in the United States Court of Federal Claims within 12 months from receipt of the Contracting Officer's decision (id.).

3.  Appellant received the Contracting Officer's final decision on December 17, 1996, thereby establishing March 17, 1997, as the latest possible date a timely appeal could be filed with the Board (Motion to Dismiss, Ex. 1, p. 20). 

            4.  Appellant notified the Contracting Officer of his intent to appeal by letter dated May 28, 1998, and received by the Postal Service no later than June 1, 1998, over 500 days after receipt of the final decision (Notice of Appeal).

DECISION

            In order to be considered timely, an appeal of a contracting officer's final decision to the Board must be filed within 90 days from the date of receipt of the final decision.  41 U.S.C. §601 et seq.; Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Jong Kyu Choi, PSBCA No. 3967, 96-2 BCA ¶28,609; Zsa Zsa Renee Pender, PSBCA No. 3853, 96-1 BCA ¶28,018.  Appellant's notice of appeal was dated May 28, 1998, over 500 days after Appellant received the Contracting Officer's final decision (Finding of Fact 4).  The appeal is, therefore, untimely, and the Board lacks jurisdiction to consider the claim.  Accordingly, Respondent's motion to dismiss this appeal is granted, and the appeal is dismissed for lack of jurisdiction.

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

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[1] Respondent's motion originally requested dismissal of twenty-one appeals for lack of jurisdiction.  Appellant subsequently requested dismissal of twenty of the appeals because he no longer desired to pursue those appeals before the Board.  The Board granted Appellant's request and dismissed the appeals with prejudice on October 14, 1998.