Appeal of

ERNEST W. MILLER

LEASE AGREEMENT

PSBCA No. 6258

APPEARANCE FOR APPELLANT:
Stephen B. Hurlbut, Esq.
Farah A. Khan, Esq.
Akerman Senterfitt LLP

APPEARANCE FOR RESPONDENT:
Carrie M. Branson, Esq.
St. Louis Law Office
United States Postal Service

OPINION OF THE BOARD
ON APPELLANT’S MOTION TO DISMISS WITHOUT PREJUDICE
AND REGARDING DISMISSAL FOR APPELLANT’S
FAILURE TO PROSECUTE

            The parties are engaged in disputes concerning responsibility for the cost of repairs resulting from hurricane damage at a postal facility that Respondent, United States Postal Service, leased from Appellant, Ernest W. Miller.  The following findings of fact are determined solely for the purpose of deciding the issues presented at this time.

FINDINGS OF FACT

            1.         In 1964, Appellant entered into a lease with the Post Office Department, predecessor to Respondent, for a postal facility known as the Ft. Myers, Florida Downtown Station (the Downtown Station) (Appeal File, Tab (AF) 19).  The lease term was twenty years with six five-year renewal options.  Renewal options were exercised unilaterally by Respondent for terms extending the leasehold through the period of relevant events in this dispute (AF 19).  The 1964 lease incorporated by reference a 1963 Agreement to Lease (AF 19, Lease ¶ 14; Appeal File Supplement).

            2.         The Downtown Station lease was amended by the parties in 1981.  The lease amendment added a maintenance rider which shifted much of the maintenance responsibility for the property from Appellant to Respondent.  The lease amendment also reduced the rent under the renewal options, and added a fair market purchase option.[1]  The amendment provided, “All provisions of the [1964] lease unaffected by this amendment are hereby confirmed and shall remain the same.”  (AF 19).

            3.         In 2004, a hurricane damaged the Downtown Station (AF 2).

            4.         In an undated letter received on March 29, 2005, by Mr. Trybus, counsel for Appellant at the time, a contracting officer for Respondent issued an affirmative Postal Service claim in the form of a contracting officer’s final decision.  The final decision assessed Appellant for the $211,314.18 cost of temporary repairs of hurricane damage, which Respondent performed at the Downtown Station and for which Respondent believed Appellant was responsible under the lease as amended.  The final decision concluded with the following notice:

            This is the final decision of the contracting officer.  You may elect to appeal this decision to the Postal Service Board of Contract Appeals pursuant to the Contract Disputes Act of 1978 by mailing or otherwise furnishing written notice (preferably in triplicate) to the contracting officer within 90 days from the date you receive this decision.  The notice should identify the contract by number, reference this decision, and indicate that an appeal is intended.  Alternatively, you may bring an action directly in the United States Court of Federal Claims within 12 months from the date you receive this decision. 

(AF 8; see also AF 9 in which Mr. Trybus advised Respondent of his representation of Appellant in this matter).[2]

            5.         By letter dated June 26, 2007, another contracting officer for Respondent notified Appellant that all hurricane damage repairs at the Downtown Station had been completed by Respondent at a total cost of $573,608.66, and that Appellant was responsible for all such costs.  The letter provided that Appellant must reimburse Respondent for the repair costs.  The letter identified an alternative for Appellant to sell the property to Respondent under a purchase option found in the original lease, at a price to be negotiated in consideration of the repair costs and other factors.  The letter concluded that Respondent intended to deduct $573,608.66 from rentals otherwise due Appellant if he were not interested in the proposed sale and did not pay Respondent by August 7, 2007.  It did not indicate that it was a contracting officer’s final decision.  (AF 6).

            6.         By letter dated August 3, 2007, Appellant rejected both options presented in the contracting officer’s June 26, 2007 letter (Finding 5).  Appellant explained that after having reviewed the parties’ obligations under the 1964 lease and the 1981 lease amendment, he disagreed with Respondent’s assessment of Appellant’s responsibility for the building repairs.  Appellant alleged repeatedly that Respondent was in breach of both the lease and the lease amendment.  The letter stated Appellant’s position as follows:

            [T]he U.S. Postal Service [is] using Hurricane Charley as an opportunity to make the Landlord pay for the cost of repairs caused by years of delayed maintenance and neglect to the leased premises despite the U.S. Postal Service’s obligations to maintain and repair the Property under the Lease Amendment. . . .

(AF 5).

            7.         By letter dated June 24, 2008, a contracting officer for Respondent notified Appellant that Respondent was exercising a purchase option under the original lease (AF 4).         

            8.         By letter dated April 3, 2009, a contracting officer’s final decision was issued to Appellant based specifically upon Appellant’s purported breach of the maintenance rider of the 1981 lease amendment.  The letter presented an affirmative $362,294.48 Postal Service claim for permanent hurricane damage repair costs at the Downtown Station.  The final decision described Respondent’s intent to recover this claim by rental offsets from two other post office properties owned by Appellant, and recited that the “scope of this final decision does not include temporary repairs in the amount of $211,314.28 which were previously addressed by Contracting Officer Bryan Pease in his final decision sent on March 25, 2005.”  (See Finding 4).  The final decision concluded with the following notice:

            This is the final decision of the contracting officer pursuant to the Contract Disputes Act of 1978.  You may appeal this decision to the Postal Service Board of Contract Appeals by mailing or otherwise furnishing written notice (preferably in triplicate) to the contracting officer within 90 days from the date you receive this decision.  The notice should identify the contract by number, reference this decision, and indicate that an appeal is intended.  Alternatively, you may bring an action directly in the United States Court of Federal Claims within 12 months from the date you receive this decision. 

(AF 2).           

            9.         By separate letter also dated April 3, 2009, the contracting officer notified Appellant that Respondent intended to offset rentals from two additional post offices owned by Appellant to recoup the $211,314.18 temporary repair costs that were the subject of the March 25, 2005 final decision referenced in Finding 4 (AF 3).[3]    

            10.       By letter dated May 4, 2009, Mr. Bulloch, successor counsel to Mr. Trybus for Appellant, transmitted to Respondent’s contracting officer (Mr. Griffin) and to another postal official Appellant’s response to three prior communications from Respondent.  Mr. Bulloch’s letter advised Respondent that “this Firm represents Mr. Miller,” and responded to Respondent’s 2008 notice of exercise of the purchase option (Finding 7); Respondent’s April 3, 2009 contracting officer’s final decision assessing the permanent repair costs (Finding 8); and Respondent’s April 3, 2009 letter notifying Appellant of the method by which Respondent intended to offset the temporary repair costs that had been assessed in the 2005 final decision (Finding 9).  The letter referred to the contracting officer’s April 3, 2009 notice regarding rental offsets for temporary hurricane repairs (Finding 9) as Griffin Letter I, and to the April 3, 2009 final decision assessing the permanent hurricane repair costs (Finding 8) as Griffin Letter II.[4]  (AF 1).

            11.       Mr. Bulloch’s May 4, 2009 letter on behalf of Appellant contested Respondent’s ability to exercise the purchase option in the 1964 lease because of language in the 1981 lease amendment.[5]  Regarding an appeal to this Board, Mr. Bulloch’s letter provided:

            This letter shall also serve as an express exercise of Mr. Miller’s appeal of the decisions referenced in both Griffin Letters by providing written notice to Mr. Griffin within ninety (90) days of the receipt of Griffin Letter I and Griffin Letter II. 

            (AF 1).

            12.       On May 7, 2009, counsel for Respondent forwarded Mr. Bulloch’s May 4, 2009 letter referenced in Findings 10-11 to the Board.

            13.       On May 11, 2009, the Board docketed this appeal.  The Board’s May 12, 2009 Notice of Docketing and Complaint Due Date and the Board’s rules of practice in effect at the time required Appellant to file his complaint by June 15, 2009.  See 39 CFR § 966.7(a).   

            14.       On June 15, 2009, Mr. Bulloch submitted a letter to the Board requesting that two letters – his May 4, 2009 notice of appeal described in Findings 10-11, and a letter Mr. Bulloch had transmitted on May 15, 2009 to counsel for Respondent offering a settlement compromise -- ”should be construed . . .  as Mr. Miller’s formal complaint pursuant to Rule 955.7(a).”

            15.       On July 2, 2009, in a detailed Order, the Board construed Mr. Bulloch’s June 15, 2009 letter as a motion for the Board to treat the two letters he referenced as Appellant’s complaint pursuant to 39 CFR § 955.7(a).  The July 2, 2009 Order denied that motion, and directed Appellant to file his complaint by July 28, 2009, in a manner consistent with the instructions described in that Order.

            16.       On July 13, 2009, Mr. Bulloch filed a formal entry of appearance, notifying the Board of his representation of Appellant in this appeal.  The Board has never received a notice of withdrawal of counsel from or on behalf of Mr. Bulloch.

            17.       On July 27, 2009, Mr. Bulloch filed with the Board a request for an extension of time in which to file Appellant’s complaint, in which Respondent consented and joined.  The basis for Appellant’s request was that the parties were negotiating towards a possible settlement.

            18.       On July 30, 2009, the Board granted the requested extension, and required Appellant’s complaint to be filed by August 17, 2009.

            19.       On August 13, 2009, Mr. Bulloch filed with the Board another request for an extension of time in which to file Appellant’s complaint, in which Respondent consented and joined.  Once again, the basis for Appellant’s request was that the parties were negotiating towards a possible settlement.

            20.       On August 20, 2009, the Board granted Appellant’s second requested extension, and required Appellant’s complaint to be filed by September 16, 2009.

            21.       On September 15, 2009, Mr. Bulloch filed with the Board a third request for an extension of time in which to file Appellant’s complaint, in which Respondent consented and joined.  As before, the basis for Appellant’s request was that the parties were negotiating towards a possible settlement.

            22.       On September 18, 2009, the Board granted Appellant’s third requested extension, and required Appellant’s complaint to be filed by September 28, 2009.  

            23.       On October 15, 2009, the Board issued an Order noting that Appellant’s complaint due to be filed by September 28, 2009 following three extensions, was overdue.  The Order directed Appellant to file his complaint by November 2, 2009.

            24.       On November 17, 2009, the Board issued another Order noting that Appellant’s complaint remained overdue, and that he had not responded to the prior two Board Orders.  The Board instructed Appellant that if he intended to pursue this appeal, he must file the complaint by December 7, 2009.  The Board further advised that failure to file the complaint by that date, or to advise the Board why the complaint could not be filed would result in an Order directing Appellant to show cause why the appeal should not be dismissed for failure to prosecute.

            25.       On December 23, 2009, the Board issued an Order to Show Cause, which noted that Appellant had neither responded to the outstanding Orders nor filed his complaint.  The Order to Show Cause directed Appellant to file his complaint or show cause why the appeal should not be dismissed with prejudice for failure to prosecute, in accordance with 39 CFR § 955.32.  The Order to Show Cause warned Appellant that failure to file the complaint or show such cause by January 22, 2010, would result in the dismissal with prejudice of the appeal.  Mr. Bulloch received the Order to Show Cause on December 30, 2009, and had received the previous Orders.  Appellant did not respond by the January 22, 2010 deadline established by the Order to Show Cause. 

            26.       A month after the Show Cause period had expired, on February 23, 2010, Mr. Hurlbut, Appellant’s third counsel in this matter, faxed a letter to the Board.  Mr. Hurlbut’s letter advised the Board that he recently had been retained to represent Appellant, that he would be replacing Appellant’s previous counsel, and that he had just received the Board’s Order to Show Cause.  Mr. Hurlbut requested an extension of time until March 11, 2009, in which to file a response to the Order to Show Cause on behalf of Appellant.

            27.       On February 24, 2010, the Board responded by issuing an Order stating that it would defer, until after March 11, 2010, ruling concerning the Order to Show Cause.  

            28.       On March 11, 2010, Mr. Hurlbut filed Appellant’s Response to Order to Show Cause, and Appellant’s Motion to Dismiss for Lack of Jurisdiction.

            29.       On April 23, 2010, Respondent replied to Appellant’s submissions.

            30.       On May 19, 2010, Appellant filed a response to Respondent’s reply and a Supplemental Response to Order to Show Cause.  Included in Appellant’s submissions was a declaration by Mr. Bulloch, dated May 11, 2010.  However, the declaration did not address certain representations included in Appellant’s Supplemental Response to Order to Show Cause.

            31.       On July 7, 2010, Appellant submitted a declaration signed by Mr. Miller, dated July 6, 2010 (Miller Decl.), and a second declaration signed by Mr. Bulloch, likely misdated June 6, 2010 (Bulloch Decl.).  Based upon this supplemental evidence, the Board finds the following additional facts:

            (a)  In the Fall of 2009, Appellant was ill with a heart condition, and was precluded medically from performing meaningful work or being involved in stressful situations (Miller Decl. ¶¶ 3-4, 7-8, and Exhibit A thereto). 

            (b)  Appellant left the country for most of November, 2009, part of December, 2009, and all of January, 2010 to convalesce (Miller Decl. ¶¶ 4-5, 7-8). 

            (c)  Appellant’s illness caused him to be unable to communicate with his counsel effectively during that time (Miller Decl. ¶ 8; Bulloch Decl. ¶ 7). 

            (d)  Mr. Bulloch withdrew from representing Appellant on December 9, 2009, and so informed Respondent’s counsel (Miller Decl. ¶ 6; Bulloch Decl. ¶¶ 10-11 and Exhibit A thereto).  Appellant did not inform the Board of the withdrawal.

DECISION

            More than thirty years after enactment of the Contract Disputes Act of 1978, 41 USC § 601, et seq. (CDA), on which the Board’s jurisdiction is based, we are called upon to decide a transition case, involving application of the CDA, which became effective on March 1, 1979, to a dispute involving a pre-CDA lease and a post-CDA lease amendment. 

            This appeal involves affirmative Postal Service monetary claims, issued in the form of contracting officer final decisions, one in 2005 and the other in 2009, as well as a rental offset schedule issued in 2009 to implement the 2005 decision (Findings 4, 8, 9).  Appellant’s position is that because the 1964 lease at issue preceded the effective date of the CDA, the plain language of the CDA provides for application of the statute only at his express election, under the election doctrine established by transition cases interpreting the CDA.  See 41 USC § 601 (note); Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 646-47 (Ct. Cl. 1981); Essex Electro Engineers, Inc. v. United States, 702 F.2d 998, 1003 (Fed. Cir. 1983).

            While it is undisputed that Appellant noticed an appeal to the Board, and filed several documents with the Board in the early stages of the proceeding (Findings 14, 16, 17, 19, 21), he now argues that he did not knowingly elect to pursue this matter before the Board and wishes to withdraw it.  Appellant argues that application of the CDA to this dispute was at his option and that he was misled by defective language included in the 2009 contracting officer’s final decision assessing him the cost of permanent hurricane damage repairs.[6]  He argues that this defective language prevented him from making a voluntary and knowing election to proceed under the CDA because the 2009 final decision incorrectly represented that the CDA process was the exclusively available appeals mechanism.  Appellant therefore argues that his appeal to the Board should be dismissed without prejudice for lack of jurisdiction, to allow resolution by a district court.

            Respondent presents several responsive arguments.  First, it argues that responsibility for the repairs at issue in this appeal is governed entirely by the 1981 lease amendment, which was executed by the parties subsequent to the effective date of the CDA.  As a result, according to Respondent, all disputes involving the 1964 lease, as amended, are within the ambit of the CDA and must be resolved thereunder. 

            Second, Respondent argues that, at a minimum, disputes such as the maintenance and repair responsibilities at issue, which are controlled by the maintenance rider included in the post-CDA 1981 lease amendment, must be resolved by the CDA process. 

            Third, Respondent contends that even if its arguments regarding the mandatory application of the CDA are rejected by the Board, the CDA still applies to this dispute because Appellant made a binding election to proceed under the Act.  In this regard, Respondent argues that the notice of appeal language in the 2009 contracting officer’s final decision was legally sufficient to allow Appellant to make a voluntary and knowing election in that it informed Appellant of his ability to contest that decision under available CDA procedures.  Respondent’s position is that it was not required to inform Appellant specifically of avenues of legal challenge which existed prior to the CDA, but only was required to inform him of CDA procedures which Appellant, represented by counsel throughout, was entitled to elect to pursue.  Respondent questions how the Board could be deprived of jurisdiction as Appellant argues based on Respondent’s conduct, where Respondent specifically notified Appellant as required by statute of the available CDA procedures (“The decision . . . shall inform the Contractor of his rights as provided in this Act.”)[7], and Appellant invoked those procedures.  Respondent therefore contends that Appellant’s notice of appeal vested the Board with jurisdiction.

            Appellant counters that while responsibility for the hurricane damage repairs may be governed by the 1981 lease amendment, the amendment did not alter the pre-CDA lease maintenance responsibilities at issue, and that the 1964 lease identifies the available remedies.

            1.       Appeal of the underlying dispute is subject to the mandatory application of the Contract Disputes Act because a post-Contract Disputes Act amendment controls.

            As described above, Appellant argues that his appeal to the Board should be vitiated, and the case dismissed without prejudice.  There are two steps to his argument.  First, Appellant urges that application of the CDA to this appeal is not mandatory (but only at his voluntary and knowing election) because the lease precedes the CDA, and the post-CDA amendment does not alter the result.  Second, he urges that because the CDA is not mandatory in this matter, the April 3, 2009 permanent repairs final decision was fatally flawed in providing inadequate notice of appeal language.  Because we conclude that the dispute falls within the mandatory application of the CDA, we need not reach the second issue. 

            Appellant relies on the language of the CDA, which provides:

            This Act shall apply to contracts entered into one hundred and twenty days after the date of enactment [calculated to March 1, 1979].  Notwithstanding any provision in a contract made before the effective date of this Act, the contractor may elect to proceed under this Act with respect to any claim pending then before the contracting officer or initiated thereafter.

            41 USC § 601 (note), Pub. L. No. 95-263, 96 Stat. 85.  Appellant argues that the plain meaning of this language is that it does not apply to contracts entered into before March 1, 1979 (except at the contractor’s election), regardless of whether the contract is modified after March 1, 1979.  Appellant concludes that since the 1964 lease preceded the CDA, it does not apply unless he so elects. 

            In City of Tacoma, Dept. of Public Utilities v. United States, 31 F.3d 1130, 1134 (Fed. Cir. 1994), the Federal Circuit rejected an argument that a pre-CDA contract could not be converted by subsequent amendment into a contract subject to mandatory application of the CDA.  The Court concluded that a post-CDA contract amendment, which provided (within the modification itself) that the contract was subject to the CDA, controlled and rendered the contract reviewable under the CDA process as a mandatory matter.  This Board reached the same result in E. P. Cline, PSBCA No. 2927, 92-1 BCA ¶ 24,396, denying reconsideration of 91-3 BCA ¶ 24,060.  Therefore, it is established that post-CDA contract amendments may, under the circumstances present in that precedent, bring a pre-CDA contract under the Act’s mandatory coverage, contrary to Appellant’s argument. 

             Parties to a contract are powerless to confer CDA jurisdiction by inserting CDA application language in a contract to which the statute does not apply.  See Florida Power & Light Co. v. United States, 307 F.3d 1364, 1370-71 (Fed. Cir. 2002); Logan Machinists, Inc. v. Federal Prison Industries, d/b/a Unicor, DOTCAB No. 4184, 05-1 BCA ¶ 32,894.  Accordingly, the implication of City of Tacoma and E.P. Cline is that it was the post-CDA amendment itself which must have conferred mandatory CDA application.  However, neither City of Tacoma or E.P. Cline involved a contract amendment that was silent regarding the mandatory application of the CDA.  The 1981 lease amendment here at issue did not specify – either way – whether the CDA would apply.[8] 

            Neither party has alerted us to precedent on this precise issue, which we view as whether a post-CDA amendment which does not recite whether it is subject to the CDA requires a dispute under that amendment to be governed by the mandatory application of the CDA.

            We conclude that the mutually executed amendment at issue constitutes the contract entered into after the CDA’s effective date, to the extent that the amendment controls, at least in part, the outcome of the dispute.  We conclude, therefore, that where, as here, resolution of an appeal is based on, or substantially depends on application of a material amendment mutually executed by the parties after the effective date of the CDA, it is subject to mandatory application of that statute.  Cf. Rough and Ready Timber Co., AGBCA Nos. 81-171-3, et al., 81-2 BCA ¶ 15,173 (dicta); Guy Roberts Lumber Co., AGBCA Nos. 81-240-1, et al., 84-3 BCA ¶ 17,506 (dicta).[9] 

            Our conclusion is consistent with an unpublished district court decision.[10]  While that decision is not binding on the Board, it involved the precise situation here presented – a pre-CDA Postal Service lease materially amended by the parties after the CDA in which resolution of the dispute depended upon application of that lease amendment.  The decision concluded that the post-CDA material amendment required the mandatory application of the CDA.  See Realty Investments v. U.S. Postal Service, CV 88-1065-WMB (C.D. Calif., May 31, 1988) (unpublished); see also Ernest Miller v. U.S. Postal Service, 86-45-CIV-5 (E.D. NC, January 18, 1987) (unpublished dismissal, on the same issue reaching the same result but without substantive analysis).

            Appellant argues that the 1981 lease amendment did not change the allocation between the parties of responsibility for the hurricane damage repairs from the allocation specified in the 1964 lease.  However, that argument is directly contrary to Appellant’s position in his extensive August 3, 2007 letter (Finding 6), in which he argued that Respondent was attempting to shift to him the cost of damage caused by Respondent’s failure to maintain and repair the Downtown Station as it was required to do under the 1981 lease amendment.  It appears to us as well that resolution of this matter will depend, at least in part, on

            determining the parties’ responsibilities under the lease amendment language, which became part of the lease well after the effective date of the CDA.[11]

            Accordingly, Appellant’s motion to dismiss this appeal without prejudice for lack of jurisdiction is denied.[12]

            2.         The Board exercises its discretion not to dismiss Appellant’s appeal for his failure to prosecute despite his failure to have complied with the Board’s Order to Show Cause.

            Having determined that Appellant may not retract his appeal of the Postal Service claims at issue due to the mandatory application of the CDA, we turn to the question of whether we should dismiss the appeal with prejudice because of Appellant’s failure to prosecute.  Despite Appellant’s lack of diligence (Findings 22-25), the Board has decided to exercise its discretion to excuse Appellant’s previous failure to have prosecuted this appeal with diligence, and his failure to have complied with the Order to Show Cause.

            We begin our analysis by noting our agreement with the sentiments expressed by the ASBCA:

            While filing deadlines in our Board rules are often liberally applied in order to resolve disputes on the merits and to promote just results, this does not mean that an appellant may disregard them with flagrant abandon or impunity, secure in the knowledge that the Board will never enforce its rules. 

            Mac-In-Erny, Inc., ASBCA No. 28689, 88-1 BCA ¶ 20,359, aff’d, 862 F.2d 321 (Fed. Cir. 1988) (Table); see, also, CCJN & Co. v. General Services Administration, CBCA Nos. 821, 1891, 10-1 BCA ¶ 34,420, reconsideration denied, 10-2 BCA ¶ 34,482.  Where a party disregards Board orders and/or makes no meaningful effort to prosecute an appeal, the Board’s rules, at 39 CFR § 955.32, provide, and we have the discretion to rule, that an appeal may be dismissed or granted for failure to prosecute after an opportunity is provided to show cause why such a result should not be ordered.  See Nationwide Postal Management, PSBCA Nos. 4020, et al., 98-2 BCA ¶ 29,895, recon. denied, 98-1 BCA ¶ 30,109; Leonard V. West, PSBCA No. 1143, 86-3 BCA ¶ 19,060. 

            We also recognize, however, that dismissal with prejudice is a harsh and drastic sanction which should be exercised sparingly and only where necessary.  See GSE Dynamics, Inc., ASBCA No. 24826, 82-2 BCA ¶ 16,059.  The Board favors deciding the merits of a claim to a dismissal without consideration of the merits.  The Board also must remain mindful of its statutory purpose – to provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.  See Section 8(e) of the CDA, 41 USC § 607 (note); Calvin Harris d/b/a Harris Electric, et al., PSBCA Nos. 3392-94, 93-3 BCA ¶ 25,959.  Indeed, the Board’s rules are formulated specifically to effectuate that statutory purpose.  See 39 CFR § 955.1(c). 

            In exercising our discretion not to default Appellant, the Board has considered a number of factors.  Weighing in favor of a default is that Appellant ignored four Board Orders over the course of five months, including a clear warning in the Order to Show Cause.  This failure to participate in his own case significantly affected the Board’s ability to ensure satisfaction of its statutory mandate, and well over a year now has passed since this appeal was docketed without so much as the complaint having been filed (Findings 12-13, 22-25).  Further weighing in favor of dismissal is that Appellant was represented by counsel throughout this proceeding, and he is bound by the acts or omissions of his counsel.  See Romala Corp. v. United States, 927 F.2d 1219, 1225 (Fed. Cir. 1991).  No explanation at all for Appellant’s failure to prosecute this appeal was offered until months after the expiration of the show cause period, and not until requested specifically by the Board.

            However, several factors weigh against issuance of a default.  Through successor counsel, Appellant has now belatedly explained that he was ill and out of the country during much (though not all) of the period in question, and at times was unable to communicate effectively with his former counsel, contributing to his former counsel’s failure to have submitted his complaint (Finding 31).  Appellant has further explained that Mr. Bulloch withdrew from representation in this appeal (although neither Mr. Bulloch nor Appellant filed a notice of withdrawal of counsel with the Board, or otherwise notified the Board during the period in question) (Finding 31).  Further, no prejudice to Respondent has been shown (as rental offsets have continued since initiation of this appeal),[13] and we now have every expectation that Appellant’s present counsel will prosecute this matter with diligence. 

            On balance, in consideration of these factors, although we have not been presented with a reasonable excuse for Mr. Bulloch’s failure to have responded to the Board’s Orders (even if Appellant were unable to respond), we believe it to be an appropriate exercise of our discretion to proceed to the merits of this dispute.  This conclusion is particularly attractive as it is consistent with the Board’s mission and since other less draconian sanctions may be available against parties and attorneys appearing before us.  See 39 CFR § 955.34; 39 CFR Part 951.  On the facts present here, we believe that it is appropriate to relieve Appellant from the ultimate consequence of his and his former counsel’s prior conduct in prosecuting this appeal.

            3.         Miscellaneous Orders.

            Appellant also has requested that this appeal be suspended in favor of ongoing proceedings between the parties in district court, of which we were not provided details.  We have concluded that mandatory application of the CDA controls rendering the district court’s ability to adjudicate this dispute highly uncertain.  See B & B Trucking, Inc. v. U.S. Postal Service, 406 F.3d 766, 768-70 (6^th Cir. 2005) (en banc); Jackson v. U.S. Postal Service, 799 F.2d 1018, 1022 (5^th Cir. 1986); Realty Investments, supra.  We decline to exercise our discretion to suspend this already seriously delayed appeal, and Appellant has not explained how a suspension would advance resolution of this dispute.  We deny Appellant’s request. 

            Appellant’s untimely request that Respondent should be ordered to file the initial complaint also is denied.  See Finding 15.  Appellant has not represented that he lacks sufficient information to allow him to file the complaint, or otherwise has explained why the usual pleading rules applicable to this appeal should not be followed.

CONCLUSION

Appellant’s motion to dismiss this appeal without prejudice is denied.
Gary E. Shapiro
Administrative Judge
Board Member

I concur:                                   I concur:
William A. Campbell                  David I. Brochstein
Administrative Judge               Administrative Judge
Chairman                                   Vice Chairman

[1] The 1964 lease included fixed-price purchase options.

[2] This undated final decision was addressed to Appellant, and a copy was transmitted to Appellant’s counsel at that time, Mr. Trybus.  Respondent has presented documentation demonstrating that the final decision was received by Appellant but not as to his date of receipt.  Respondent also has provided documentation that Mr. Trybus received the final decision on March 29, 2005.  (AF 8).

[3] This notice recites that the $211,314.18 offset based upon the 2005 final decision was for the cost of permanent repairs.  This is clearly in error, as the stated figure as well as the referenced final decision involved the cost of temporary repairs.

[4] The letter repeats the error contained in Respondent’s April 3, 2009 letter that the $211,314.18 offset was for permanent repairs rather than temporary repairs.  See footnote 3.

[5] In briefing before the Board, the parties informed us that issues involving exercise of the purchase option are in litigation in the United States District Court for the Middle District of Florida.  Details of that litigation were not provided.

[6] Appellant does not argue, however, that the notice language included in the 2005 final decision regarding temporary hurricane damage repairs provided inadequate appeal notice to him under the CDA election doctrine.

[7] 41 U.S.C. § 605(a) (emphasis added).

[8] This silence in the 1981 lease amendment regarding application of the CDA is not surprising.  At the time, Respondent maintained that its leases were not covered by the CDA, and Board precedent supported that view.  See D. Oland Hawkins, PSBCA No. 796, 80-1 BCA ¶ 14,293.  Hawkins was overruled by the Board in George Ungar, PSBCA No. 935, 82-1 BCA ¶ 15,549.

[9] While dicta, the referenced opinions support our conclusion.  The Rough and Ready board stated:

If the modifications extending the original contract are themselves viewed as “the contracts”, the Act is applicable on a mandatory basis, since those “contracts” were entered into after the effective date of the Act.  Contrary to the contention of Government counsel, the fact that a resolution of the claim or dispute arising from a contract modification requires interpretation or construction of the original contracts does not affect the applicability of the Act.

Rough and Ready, 81-2 BCA at 75,098.

The Guy Roberts board stated:

[T]he appeals were subsequently redesignated . . . to indicate that they were in fact subject to the Contract Disputes Act . . .  on a mandatory basis by reason of a contract modification to that effect executed June 26, 1980.  These modifications provided for term extensions involving new provisions and requirements, and deletions of other provisions, constituting in effect new contracts entered into after the effective date of the CDA.

Guy Roberts, 84-3 BCA at 87,200-01, n.1.

We need not decide, as Respondent urges us to do, whether all disputes concerning the 1964 lease therefore are governed by mandatory application of the CDA.  Because we rule that the CDA applies to this appeal as a mandatory matter, we also need not decide the CDA election doctrine issues raised by Appellant.

[10] Copies of this unpublished decision are appended to the copies of this Opinion transmitted to counsel.

[11] More precise determination of Appellant’s contractual position is hindered, of course, by his failure to have filed his complaint.  See section 2, infra. 

[12] Because it was not raised or briefed by the parties, this Opinion does not address whether Appellant may have intended or otherwise effectuated an appeal challenging the 2005 contracting officer’s final decision assessing Appellant for the $211,314.18 cost of temporary repairs to the Downtown Station performed by Respondent (Findings 4, 10-11), and if so, whether it was untimely filed under the CDA requirements.  See 41 USC §§ 605(b); 606; 607(c).  For the same reason, we do not address whether Appellant’s notice of appeal letter purporting to appeal the contracting officer’s separate April 3, 2009 letter, notifying Appellant that Respondent intended to offset rentals from two additional post offices to recoup the $211,314.18 costs of the temporary hurricane damage repairs that were the subject of the 2005 final decision (Finding 9), may be appealed under the CDA separately from the underlying 2005 final decision.  Finally, neither party argues that the dispute between them concerning Respondent’s exercise of a purchase option included in the 1964 lease, which is the subject of litigation in federal district court, is covered by the CDA as it applies to this Board.  Nor has either party argued that the purchase option dispute has been appealed or otherwise may have been presented to this Board.  Accordingly, we do not address our jurisdiction in that regard.

[13] See Northwest Grafix Group, GPOBCA No. 34-92, 1994 WL 837428 (Dec. 2, 1994) (discussing role of prejudice to the opposing party in consideration of dismissal for failure to prosecute).