June 28, 1999

Appeal of

NATIONWIDE POSTAL MANAGEMENT

ASSET 10305 LLC

LEASE AGREEMENTS

PSBCA Nos. 4116-4118

APPEARANCE FOR APPELLANT:

J. Leonard Spodek

APPEARANCE FOR RESPONDENT:

Gary Shapiro, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            The three captioned appeals were dismissed with prejudice, pursuant to 39 C.F.R. §955.32, for Appellants' failure to prosecute.  Appellants have filed a motion seeking reconsideration of the dismissals, and Respondent has opposed the motion.

            Each of these appeals was filed on September 16, 1997, in response to the contracting officer's final decisions assessing Appellants the costs of making certain repairs to three post offices leased to Respondent.  The Recorder issued docketing notices to Appellants, included copies of the Board's Rules of Practice, and noted that complaints were to be filed within 30 days of receipt of the docketing notices – or on or about October 21, 1997.  Appellants failed to file complaints in any of these appeals, notwithstanding three subsequent Orders directing that the complaints be filed by specific dates.[1]  Finally, by Order dated March 19, 1998, Appellants were directed to file their complaints no later than April 3, 1998, or show cause why the appeals should not be dismissed with prejudice for failure to prosecute.  Appellants failed to respond to that Order and, on April 9, 1998, the Board dismissed the appeals with prejudice.

            Appellants cite three reasons that they contend should lead the Board to reconsider the dismissals – that Appellants were understaffed and could not find qualified people; that Appellants' office was converting from one computer program to another, which conversion was "not going well and created havoc;" and that Appellants had "an abundance" of legal matters that required the personal attention of Appellants' principal.  Respondent argues that none of the reasons cited by Appellants justifies reconsideration by the Board.  We agree with Respondent.

            Even if Appellants had legitimate reasons for being unable to file complaints in a timely manner, they were not free to simply ignore the direction of the Board.  If Appellants needed additional time, they could have, and should have, so advised the Board and requested additional time to comply.  Notwithstanding repeated direction to file complaints, and a clear warning that the failure to file would result in dismissal, Appellants failed to file complaints or ask for an extension.

            Appellants' motion offers nothing that would cause us to change our dismissals with prejudice.  Accordingly, on reconsideration, the dismissals of the captioned appeals are affirmed.

David I. Brochstein

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

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[1]   In addition, one of the Orders directed Appellants to respond, within 30 days, to discovery requests filed by Respondent.  That direction by the Board was also not followed.