November 22, 2011

Appeal of                                                                    

WINONA RESTORATION PARTNERS LLC                                 
d/b/a THE VILLAGE AT WINONA                                                                                                                                                                                                                                                                                                 LEASE AGREEMENT

PSBCA No. 6399

APPEARANCE FOR APPELLANT:         
Brent L. Wilcoxson

APPEARANCE FOR RESPONDENT:     
Jacqui De Laet Skoglund, Esq.
General Law Service Center
United States Postal Service

OPINION OF THE BOARD ON RESPONDENT’S MOTION TO DISMISS

Appellant, Winona Restoration Partners LLC, leases a post office to Respondent, United States Postal Service.  Respondent altered a parking lot on or near the leased premises.  Appellant demanded that Respondent restore the parking lot to its former condition. The contracting officer rejected Appellant’s demand, and Appellant appealed.  Appellant elected application of the Board’s Small Claims (Expedited) procedures, 39 C.F.R. §955.13.

Respondent has filed a motion to dismiss the appeal, contending that the sole relief Appellant seeks is beyond the Board’s authority.  The following findings of fact are made for purposes of deciding this motion.

FINDINGS OF FACT

1.  Under a lease dated September 22, 1999, Appellant leased the Winona Lake, Indiana Main Post Office to Respondent for ten years, beginning December 1, 1999.  The lease contained an option available to Respondent for an additional five years, which Respondent has exercised, continuing the lease through November 30, 2014.  (Stipulation of Non-Contested Facts for PSBCA No. 6398, paragraphs (“Stip.”) 1, 2; Appeal File, tabs (“AF”) 1, 2).

2.  The lease permitted Respondent to make alterations to the leased premises (AF 1, General Condition A.21).

3.  During the lease, Respondent modified the parking lot on or near the premises.  By letter to the contracting officer from Appellant’s counsel dated August 23, 2010, Appellant complained that Respondent’s modification of the parking lot was unauthorized and demanded that Respondent restore the lot to its previous condition.  (AF 5).

4.  By letter of August 30, 2010, the contracting officer refused to restore the parking lot. He cited paragraph A.21 of the General Conditions as authority for Respondent to make the alterations at issue without notification to the lessor.  (AF 6).[1]

5.  In a December 11, 2010 letter to the contracting officer, Appellant appealed the decision to modify the parking lot and Respondent’s refusal to restore the premises, requesting application of the Board’s Small Claims (Expedited) procedure (AF 14).  The contracting officer belatedly sent the appeal to the Board on July 22, 2011, at which time it was docketed.

DECISION

The Board deemed Appellant’s December 11, 2010 letter as its complaint, but also noted that we lack authority to grant injunctive relief directing Respondent to restore the parking lot.  The Board advised that it could consider an appeal related to a monetary claim submitted to the contracting officer.  (Order dated August 2, 2011).  The record does not reflect that Appellant has submitted a monetary claim related to Respondent’s alteration of the parking lot.

Directing Respondent to restore the parking lot to its previous condition—the only relief Appellant seeks in this appeal—involves an equitable remedy in the nature of injunctive relief.  The Board lacks authority to order such relief.  See JM Carranza Trucking Co., PSBCA No. 6354, 11-1 BCA ¶ 34,643; Luvin Constr. Corp., PSBCA No. 6235, 09-2 BCA ¶ 34,222; Lee Ann Wyskiver, PSBCA No. 3621, 95-2 BCA ¶ 27,755.  The Board’s lack of authority to order Respondent to restore the parking lot was highlighted in the August 2, 2011 Order in which Appellant was advised that it could submit a monetary claim to the contracting officer, which, if denied and appealed, could be considered by the Board.  The record does not reflect that Appellant submitted a monetary claim, and, accordingly, this appeal is subject to dismissal.  See Tab Distributors, Inc., PSBCA No. 4134, 99-1 BCA ¶ 30,110.

The appeal is dismissed.  However, this dismissal is without prejudice to Appellant’s submission of a claim within the meaning of the lease’s Claims and Disputes clause (AF 1, General Condition A.13) and an appeal of any adverse contracting officer’s final decision to the Board in which appeal Appellant seeks monetary or other relief within the authority of the Board to grant.

Norman D. Menegat
Administrative Judge
Board Member

[1] This letter was not identified as a final decision under the Contract Disputes Act and did not advise Appellant of its appeal rights.