OPINION OF THE BOARD ON REQUEST TO WITHDRAW APPEAL

Shortly before the hearing in this appeal, Appellant requested that he be permitted to withdraw his appeal. Respondent opposed the request, arguing that under the circumstances a dismissal “with prejudice” was appropriate. Appellant argued that the Board should dismiss the appeal “without prejudice.”

BACKGROUND

Appellant appealed Respondent’s termination for default of his contract for transportation of mail. Following the filing of pleadings and the Appeal File, the Board scheduled a hearing to commence on March 21, 2000, and, as is the Board’s routine practice, the parties were directed to submit witness lists, including for each witness a reasonably detailed statement of the intended testimony (Board Order dated February 11, 2000). On March 8, 2000, the Board received Appellant’s witness list, which listed 23 witnesses, but the list did not comply with the Board’s direction to include a statement of the witnesses’ intended testimony. Also on March 8, Respondent’s counsel called the Board’s Recorder to report a tentative settlement of the dispute, and on March 9, the Board cancelled the March 21, 2000 hearing (Board Order dated March 9, 2000), without ever addressing the sufficiency of Appellant’s witness list.

The parties were unable to conclude settlement of the dispute, and the hearing was rescheduled for March 20, 2001 (Board Order dated November 21, 2000). Witness lists, including a detailed statement of the intended testimony of each witness, were to be submitted by January 19, 2001. On that date, Appellant filed a “Motion for Continuance, for Five-Day Hearing as Originally Scheduled, and for Non-Bifurcation of Hearing.” Appellant declined to submit a witness list, asserting that he had already submitted such a list in conjunction with the March 21, 2000 hearing. He also asked that the hearing be scheduled for five days, that both quantum and entitlement be heard, and that the hearing be postponed. Respondent submitted its witness list with a statement of the expected testimony of each witness.

By Board Order dated January 23, 2001, Appellant was directed to file the required witness list no later than February 2, 2001. In denying Appellant’s request that quantum be heard with entitlement, the Board pointed out that the only issue before the Board was the validity of the termination of Appellant’s highway transportation contract for default because no monetary claim had been filed with the contracting officer. Finally, the request to postpone the hearing was denied for lack of sufficient information to support the request.

On February 2, 2001, Appellant filed a “Notice of Withdrawal of Appeal,” accusing the Board Administrative Judge assigned the appeal of bias. He repeated his arguments regarding the length of the hearing, the number of witnesses, addressing entitlement only, and complained about the Board Administrative Judge raising a question regarding the Board’s jurisdiction over any monetary claims Appellant may have. Appellant also complained that the Board Administrative Judge had attempted to dissuade him from asserting bad faith on the part of Postal Service employees in terminating his contract. Respondent filed a response to Appellant’s Notice of Withdrawal of Appeal, objecting to dismissal of the appeal unless the dismissal was with prejudice.

By Order dated February 12, 2001, the Board addressed Appellant’s complaints. Instead of dismissing the appeal, as requested by Appellant, the Board cautioned Appellant that a dismissal at this stage of the proceedings would be with prejudice and could limit his ability to litigate the validity of the termination in another forum. The Board allowed Appellant until February 23, 2001, to reconsider and rescind his request to withdraw the appeal. He was advised that if he did not rescind the request, the appeal would be dismissed with prejudice pursuant to 39 C.F.R. §955.32 for Appellant’s failure to prosecute the appeal. Appellant was directed to provide the witness list by that date if he chose to proceed.

On February 26, 2001, Appellant filed an “Objection to the Administrative Law Judge’s Order Re Appellant’s Withdrawal of Appeal.” In it, Appellant objected to the assigned Board Administrative Judge having addressed the complaints Appellant raised about the processing of the appeal. Appellant argued that his complaints were intended for consideration by the Board and that it was an abuse of authority for an individual Board Administrative Judge to address such issues.

DECISION

In procedural matters leading up to a hearing, the Board generally acts through the Board Administrative Judge assigned responsibility for the appeal. The procedural matters that Appellant complains of were appropriate for ruling by the Board Administrative Judge, and our review of the record reflects no error in the presiding Administrative Judge’s rulings themselves.[1]

Review of proposed witnesses before a hearing, including a review of their expected testimony, is customary, and Appellant’s refusal to cooperate in that process is inexplicable.[2] Likewise, bifurcation of the proceeding to address entitlement before addressing quantum is customary in the Board’s practice, especially in termination for default cases where no monetary claim has been submitted to the contracting officer.[3] This allows the hearing to be conducted economically, and once entitlement is decided, the parties can generally negotiate the amount of recovery. They may return to the Board for resolution of quantum issues that they cannot resolve on their own, after the issue is first addressed by the contracting officer in a contracting officer’s final decision. As to the length of the hearing, although space for the hearing is often arranged based on an assessment of the expected length of the hearing, should the time arranged not be sufficient, the hearing would continue until completion. Appellant was advised of this in the Board’s February 12, 2001 Order. Finally, pointing out to Appellant the well-established, high threshold to proving that Postal Service officials acted in bad faith[4] was appropriate. This is a standard not always familiar to those who do not practice regularly in the government contracts field, and pointing it out to Appellant at an early stage of the appeal was intended to alert Appellant to the burden of proof he had to sustain.

Appellant has shown no basis for the Board dismissing the appeal without prejudice. The only provision in the Board’s rules for a dismissal without prejudice addresses situations where delays in proceeding with an appeal are beyond the control of the Board and appear likely to continue for an inordinate length of time. In such cases, the Board may dismiss the appeal without prejudice to restoration to the docket when the cause of the suspension has been removed. 39 C.F.R. §955.31. This rule is not applicable here, as there is no impediment to proceeding in this appeal. Moreover, although Appellant requests a dismissal “without prejudice,” it is apparent that he does not seek to preserve his right to restore the appeal to the Board’s docket at some time in the future. Rather, Appellant has expressed unequivocally his intention not to proceed before the Board now or in the future. Therefore, a dismissal without prejudice is not appropriate in this appeal.

Appellant does not dispute that he has no intention of prosecuting this appeal, but he correctly points out that 39 C.F.R. §955.32 addressing a party’s failure to prosecute an appeal does not specifically require a dismissal with prejudice. However, the Board’s practice is to dismiss with prejudice in such cases. Appellant has failed to comply with orders of the Board and has indicated a refusal to continue prosecution of this appeal. In the Board’s February 12, 2001 Order, Appellant was given a final chance to proceed and was specifically advised that a dismissal with prejudice would result if he failed to prosecute the appeal. Nevertheless, he continued to complain of his treatment by the Board and, despite being advised of the consequences, did not rescind his request to withdraw the appeal.

Accordingly, this appeal is dismissed, and the dismissal is with prejudice to its restoration to the Board’s docket in the future.[5]

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

[1] The proper procedure to raise complaints of bias by an administrative judge is to file a motion to recuse. However, even if Appellant had done so, such motion would have been denied, because there is no showing of bias on the part of the presiding Administrative Judge.

[2] Appellant’s contention that the Board approved his March 8, 2000 witness list is without merit. The Board took no action on that list, having received word of the tentative settlement of the appeal on the same day Appellant’s witness list was submitted. Upon receipt of notice that the appeal had been tentatively settled, the Board cancelled the hearing by Order dated March 9, 2000, one day after receipt of Appellant’s witness list.

[3] Appellant’s complaint about being advised that any monetary claim would not be considered in this appeal is without merit. It is well established that the Board does not have jurisdiction to consider a monetary claim that has not first been submitted to the contracting officer, see Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981); Jerome Bailey, PSBCA No. 3638, 95-1 BCA ¶ 27,447, and reminding the parties of that limitation was appropriate in discussing the scope of the hearing.

[4] Bad faith must be shown through “well-nigh irrefragable proof” that the actions of the government officials were motivated by a specific intent to injure Appellant. See Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996), cert. denied, 520 U.S. 1210 (1997); Gary W. Noble, PSBCA No. 4094, 00-1 BCA ¶ 30,602.

[5] Although not granting Appellant a dismissal “without prejudice,” this outcome does not conflict with Appellant’s requested relief. We express no view on the significance in any other proceedings of this characterization of our dismissal.