January 6, 2000
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
(Orange Lake, FL Main Post Office)
PSBCA No. 4464
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
OPINION OF THE BOARD ON MOTION TO DISMISS
Appellant, J. Leonard Spodek, has appealed the contracting officer's decision assessing costs incurred by Respondent, United States Postal Service, in repairing the air conditioning system at the Orange Lake, Florida Main Post Office, which Respondent leases from Appellant. Respondent has filed a motion to dismiss this appeal on the basis that the Board lacks jurisdiction to consider it because of Appellant's failure to appeal the contracting officer's decision within the 90-day period allowed by the Contract Disputes Act.
FINDINGS OF FACT
For the purpose of deciding the motion, we make the following findings of fact:
1. The contracting officer issued a final decision assessing costs against Appellant by letter dated June 11, 1999. The letter was sent to Appellant by certified mail, return receipt requested. (Motion, Exhibit A).
2. Appellant received the final decision on June 14, 1999 (Motion Exhibits A, B).
3. Appellant filed a notice of appeal by letter dated September 15, 1999, which was 93 days after receipt of the final decision (Motion, Exhibit C).[1]
DECISION
Respondent argues that the Board lacks jurisdiction to consider this appeal because of Appellant's failure to file an appeal within the 90-day period required by the Contract Disputes Act, 41 U.S.C. §605(b). Further, Respondent argues that the Board has no discretion to waive the deadline and that, accordingly, the appeal must be dismissed.
Appellant argues that as a pro se litigant who is prosecuting this appeal as well as numerous others, he should be entitled to some leeway in meeting the appeal date. Appellant argues further that there may have been some delay between the time the final decision arrived in his office and the time he actually saw it.
As argued by Respondent, the 90-day appeal period set out in the Contract Disputes Act is jurisdictional and may not be waived, even if good cause for a late filing is shown. See Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982), Appellant does not contend that the final decision was received in his office any later than June 14, 1999, and does not contend that he sent the notice of appeal any earlier than the September 15, 1999 date that it bore. Thus, the record shows that Appellant failed to file his appeal within the time allowed by the Contract Disputes Act.
Accordingly, the appeal is dismissed.[2]
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
William K. Mahn
Administrative Judgee
Board Member
[1] Appellant's notice of appeal refers to June 15, 1999, rather than June 11, 1999, as the date of the final decision. However, both the name of the facility and the total amount assessed against Appellant are consistent in the final decision and in the notice of appeal. In addition the record does not contain any document dated June 15, 1999, that might be considered a contracting officer's final decision. Accordingly, we conclude that Appellant intended to appeal the June 11, 1999 final decision.
[2] Even if, as Appellant speculates, he did not see the final decision as soon as it arrived in his office, that delay would not halt the running of the 90-day appeal period. See Penole Industries, ASBCA No. 42025, 91-2 BCA ¶ 23,857; Miller-Wills Aviation, Inc., ASBCA No. 40976, 91-1 BCA ¶ 23,290. See also Borough of Alpine v. United States, 923 F.2d 170 (Fed. Cir. 1991).