December 7, 1998
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
PSBCA No. 4265
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Gary Shapiro, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss this appeal contending that Appellant has never filed a claim with the contracting officer and that, therefore, the Board is without jurisdiction over Appellant’s appeal. Respondent argues, additionally, that the appeal is barred by res judicata.
FINDINGS OF FACT
1. In a May 26, 1998 letter addressed jointly to the contracting officer and to one of Respondent's attorneys at 448 East 6400 South, Salt Lake City, UT 84207-7591, Appellant requested payment of one month's rent and reimbursement of certain tax related items. The salutation of the letter was to the Postal Service attorney. The letter stated that Appellant was making the request to the attorney for the contracting officer because pending litigation Appellant had with the contracting officer prevented him from communicating with the contracting officer. Appellant enclosed documents which allegedly justified the items he claimed.
2. Both the attorney for the contracting officer and the contracting officer appear to be located at the 448 East 6400 South address.
3. Not having received a response to his May 26 letter by August 3, 1998, Appellant asked the Board to docket an appeal of the contracting officer's deemed denial.
DECISION
Respondent contends that the May 26 letter, addressed as it was to counsel and to the contracting officer, was not a claim under the Contract Disputes Act. Respondent concedes that a claim need not be addressed to and delivered directly to the contracting officer.[1] However, Respondent argues that Appellant's May 26 letter cannot constitute a claim under the Contract Disputes Act because it was not "committed" to the contracting officer and because Appellant did not "yield to the authority" of the contracting officer[2] as required by the United States Court of Appeals for the Federal Circuit in D. L. Braughler Co., Inc. v. United States, 127 F.3d 1476 (Fed. Cir. 1997). According to Respondent, since Appellant did not instruct the Postal Service attorney to send the claim to the contracting officer, the claim was not committed to the contracting officer, nor did Appellant yield to his authority.
In this appeal it is apparent that Appellant's claim was both "committed" to the contracting officer and that Appellant was "yielding to the authority of the contracting officer" to make a decision on the claim as required by Braughler. Appellant's claim was specifically addressed to the contracting officer as well as to his attorney. Although the letter's salutation was to the attorney, the letter makes it quite clear that Appellant was "speaking" to the attorney merely as a means of conveying his request for reimbursement to the contracting officer. Under these circumstances, Respondent's attorney may not defeat what is otherwise a valid claim merely by failing or refusing to transmit the jointly addressed claim to the contracting officer. Therefore, Appellant could properly appeal the "deemed denial" of his claim when the contracting officer failed to act on it.
Respondent also argues that this appeal is barred by res judicata. Respondent notes that in PSBCA No. 4120, which was dismissed with prejudice because of Appellant's failure to prosecute, the same property was at issue, and the same Appellant sued concerning an alleged breach of the same termination agreement at issue in this appeal. However, the record at this stage of the appeal is not sufficiently complete to make any determination on this argument.
Accordingly, Respondent's motion to dismiss for lack of jurisdiction is denied. However, Respondent may renew its motion arguing that the appeal is barred by res judicata if further development of the record justifies such a motion.
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]See Dawco Constr., Inc. v. United States, 930 F.2d 872, 880 (Fed. Cir. 1991) overruled in part, on other grounds; Reflectone v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995); accord Roy McGinnis & Co., ASBCA Nos. 40004, 40005, 91-1 BCA ¶ 23,395; Robin Indus., Inc. v. United States, 22 Cl. Ct. 448 (1991).