October 7, 2004
Appeal of
GLENNA ROMERO
Under Contract No. HCR 853B4
PSBCA No. 5137
APPEARANCE FOR APPELLANT:
Jerald S. Chesler, Esq.
APPEARANCE FOR RESPONDENT:
Carole A. Hughes, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Appellant, Glenna Romero, has appealed from a contracting
officer's final decision terminating her right to perform box delivery service
for Respondent, United States Postal Service, in and around Scottsdale, AZ. Respondent has filed a motion to dismiss the appeal, alleging that the Board lacks
jurisdiction because the appeal was not filed within the 90-day period provided
in the Contract Disputes Act of 1978, as amended (CDA). The following findings of fact are made solely
for the purpose of deciding Respondent’s motion.
Findings of Fact
1. On April
30, 2002, Respondent issued a Notice of Renewal of Appellant’s contract, HCR 853B4,
for box delivery service between Kachina Station and 56th Street, Scottsdale,
AZ (Appeal File (AF) Tab 14). Performance
under the renewal contract was to begin on July 1, 2002, and extend to June 30,
2006 (id.).
2. The renewal
contract included the standard Postal Service Claims and Disputes clause (Clause
B-9, January 1997) and Termination for Default clause (Clause B-13, January
1997 (Modified))(AF Tab 1, Contract Sections H.2 and H.4).
3. Appellant did
not report for work on October 24, 25 and 27, 2003, or provide a relief driver
to cover her route. By letter dated
October 27, 2003, the contracting officer directed Appellant to show cause by
November 3, 2003, why her contract should not be terminated for default for
abandonment of service. (AF Tabs 41 &
42). Appellant received the show cause
letter on November 11, 2003 (see AF Tab 42 and Affidavit of G. Romero,
attach. 1).
4. By
certified letter dated and mailed on November 5, 2003, the contracting officer notified
Appellant that he was terminating her right to provide service on her contract
because of her failure of performance and abandonment of the route. The final decision advised Appellant of her
appeal rights to the Board and the United States Court of Federal Claims. (AF
Tab 47; Apr. 13, 2004 Declaration of A. Washington (Apr. Washington Decl.) ¶ 3).
5. Appellant received
the contracting officer’s final decision on November 7, 2003, thereby
establishing Thursday, February 5, 2004, as the last date for filing a timely
appeal from that decision with the Board (AF Tab 47; Apr. Washington Decl. ¶ 5
& Exhibit 1).
6. Appellant
was hospitalized for a medical condition on October 24, 2003, and again on November
5, 2003. Appellant was mentally disabled
due to that condition until December 5, 2003 (Affidavit of G. Romero, ¶¶ 3, 5
& 6).
7. By fax
dated February 13, 2004, counsel for Appellant sent the contracting officer a
copy of a February 2, 2004 letter addressed to the contracting officer that counsel
stated had previously been sent on February 2, 2004, and which he was resending
because he had received no response from the contracting officer (AF Tab 51).
8. The February
2, 2004 letter specifically stated that Appellant intended to appeal the
contracting officer’s November 5, 2003 final decision to the Board (AF Tab 51).
9. Respondent’s
only receipt of Appellant’s February 2, 2004 letter was with the February 13,
2004 fax (Apr. Washington Decl. ¶ 5 and June 9, 2004 Washington Decl. ¶¶ 8
& 10).
Decision
Respondent argues that the Board lacks jurisdiction to
consider this appeal because Appellant’s notice of appeal was filed more than
90 days after Appellant received the contracting officer’s final decision. Appellant argues that she received the
contracting officer’s final decision on November 11, 2003, and that her
counsel’s letter of February 2, 2004, appealing the contracting officer’s
November 5, 2003 final decision was timely mailed. Alternatively, Appellant asserts that the
February 13, 2004 fax should be considered a timely appeal because she was
mentally disabled during a portion of the 90-day appeal period and under common
law and Arizona state law, statutes of limitation are tolled during periods of
mental disability.
Under the CDA, an appeal to the Board must be filed
within 90 days from the date of receipt of a contracting officer’s final decision.
41 U.S.C. §§
605(b) and 606; Cosmic
Constr. Co. v. United States, 697 F.2d
1389 (Fed. Cir. 1982); J. Leonard Spodek, Nationwide Postal Mgmt.,
PSBCA No. 4236, 99-1 BCA ¶ 30,108; Zsa Zsa Renee Pender, PSBCA No. 3853, 96-1 BCA ¶ 28,018.
Absent an appeal to the Board within that 90-day period, or the
commencement of a suit in the United States Court of Federal Claims within one
year from receipt of the contracting officer’s final decision, the contracting
officer’s decision “shall be final and conclusive and not subject to review by
any forum, tribunal, or Government agency.”
41 U.S.C. § 605(b); Cosmic at 1390. The 90-day appeal period is jurisdictional
and may not be waived by a Board of Contract Appeals. Cosmic at 1390.
Appellant contends she did not receive the
contracting officer’s final decision until November 11, 2003, and that her notice
of appeal was mailed on February 2, 2004, well within the CDA 90-day appeal
period. The evidence establishes that Appellant
received the November 5, 2003 contracting officer’s final decision on November
7, 2003 (Findings 4, 5),[1] and Appellant has presented no persuasive evidence
that her February 2, 2004 letter was actually placed in the mail or otherwise
furnished to the contracting officer[2] prior to February 13, 2004 (Finding 9). Accordingly,
Appellant’s appeal was untimely filed.
Appellant nonetheless argues that the appeal period
should be tolled because she was temporarily disabled during a portion of the
appeal period. While the Supreme Court
and the Court of Appeals for the Federal Circuit have recognized that some federal[3] statutory
deadlines may be equitably tolled, see Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89 (1990) and Bailey v. West, 160 F.3d 1360 (Fed.
Cir. 1998), neither has concluded that the doctrine of equitable tolling applies
to the CDA 90-day appeal period. See
Bonneville Assocs., Ltd. P’ship v.
Barram, 165 F.3d 1360, 1365
(Fed. Cir. 1999), cert. denied, Bonneville
Assocs., Ltd. P’ship. v. Barram, 528 U.S. 809 (1999). Moreover, even if we were to conclude that the
90-day CDA appeal period could be tolled in an appropriate case, Appellant has
not shown that her medical condition would entitle her to the application of
equitable tolling in this appeal. See
Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004).
Accordingly, Respondent's motion to dismiss is
granted, and the appeal is dismissed for lack of jurisdiction.[4]
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1]
Even if Appellant had not received the contracting officer’s decision
until November 11, 2004, the last day for filing a timely notice of appeal
would have been February 9, 2004, and Appellant’s February 13, 2004 fax
transmitting the February 2, 2004 notice of appeal would have been untimely.
[2]
Appellant bears the burden of showing by a preponderance of the evidence
that the appeal was mailed or otherwise filed within the CDA 90-day appeal
period. See Petroleum Constr.,
Inc., DOTBCA No. 2533, 93-2 B.C.A. ¶ 25,760; Micrographic Tech., Inc.,
ASBCA No. 25577, 81-2 B.C.A. ¶ 15,357;
Astro Indus., Inc., ASBCA No. 19082, 74-2 BCA ¶10,921 (1974).
[3] The resolution of disputes arising
under Postal Service contracts is controlled by federal law, not common law or
the laws of any particular state. United
States v. County of Allegheny, 322 U.S. 174, 183 (1944); United States
v. Seckinger, 397 U.S. 203, 209-10 (1970); Forman v. United States,
767 F.2d 875, 879 (Fed. Cir. 1985).
[4] Although the Board lacks
jurisdiction to consider Appellant’s appeal, Appellant may nonetheless bring an
action directly in the United States Court of Federal Claims within 12 months
from the date of receipt of the contracting officer's final decision. 41 U.S.C. § 609(a)(1) and (3).