PSBCA No. 6698


November 30, 2017

TOM AND FRANCES MCGHEE v. UNITED STATES POSTAL SERVICE

PSBCA No. 6698

APPEARANCE FOR APPELLANT
Tom and Frances McGhee

APPEARANCE FOR RESPONDENT
Barbara H. Cioffi, Esq.
United States Postal Service Law Department

OPINION OF THE BOARD

The United States Postal Service leased the Sandpoint, Idaho, Post Office from Tom and Frances McGhee, who filed a claim seeking compensation for maintenance work on the building.  The Postal Service moves to dismiss for lack of jurisdiction because the McGhees filed the Notice of Appeal more than 90 days after receiving the final decision.  We grant the motion and dismiss this appeal.

FINDINGS OF FACT

  1. The Postal Service leased the Sandpoint, Idaho, Post Office from the McGhees until March 2016 when the Postal Service purchased it (Final Decision).
  2. On May 25, 2016, the McGhees filed a $28,815.15 claim for maintenance work done on the building during the term of the lease.  They amended their claim on October 11, 2016, to add more work, which raised the total claimed to $38,427.67.  (Final Decision; see also Notice of Appeal Attachments at 2).
  3. The contracting officer denied the claim by final decision dated May 3, 2017.  The final decision advised:
    This is the final decision of the contracting officer pursuant to the Contract Disputes Act of 1978 and the clause of the lease entitled Claims and Disputes.  You may appeal this decision to the Postal Service Board of Contract Appeals by filing a new Postal Service Board of Contract Appeals case through the USPS Judicial Officer Department’s Electronic Filing System . . . within ninety days from the date you receive this decision.  You also may appeal this decision to the Postal Service Board of Contract Appeals by mailing or otherwise furnishing written notice to the contracting officer within ninety days from the date you receive this decision. . . .  Alternatively, you may bring an action directly in the United States Court of Federal Claims within twelve months from the date you receive this decision.
  4. The McGhees received the final decision on May 6, 2017 (Motion to Dismiss, Attachment 2, PS Form 3811 Domestic Return Receipt).
  5. The McGhees mailed a Notice of Appeal to the Board seeking review of the contracting officer’s final decision.  The Notice of Appeal is dated September 20, 2017, and the envelope is postmarked September 21, 2017.

DECISION

The Postal Service moves to dismiss, arguing that the Board lacks jurisdiction because the McGhees failed to file a notice of appeal within 90 days of receiving the contracting officer’s final decision.
The Contract Disputes Act requires that “[a] contractor, within 90 days from the date of receipt of a contracting officer’s decision . . . , may appeal the decision to an agency board . . . .”  41 U.S.C. § 7104.
The 90-day deadline to file a notice of appeal after receiving a final decision is strictly construed and failure to appeal within 90 days precludes the Board from taking jurisdiction to consider the case on its merits.  See Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982).  A board of contract appeals “may not waive this ninety-day statutory period.”  West Coast Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) (citing Cosmic Constr. Co., 697 F.2d at 1391); see also Finkle v. United States Postal Service, PSBCA No. 6540, 15-1 BCA ¶ 35,927; 47 Main Street Old Mystic LLC, PSBCA No. 6370, 11-2 BCA ¶ 34,798; J. Leonard Spodek, Nationwide Postal Mgmt., PSBCA No. 3584, 94-2 BCA ¶ 26,850.
The Notice of Appeal was postmarked on September 21, 2017, which is 138 days after the McGhees received the final decision on May 6, 2017 (Findings 4, 5).  In response to the Postal Service’s Motion to Dismiss, the McGhees do not specifically address timeliness.  We conclude that the McGhees did not file the Notice of Appeal within 90 days of receiving the contracting officer’s final decision as required by the Contract Disputes Act.  The dismissal is without prejudice to the McGhees’ right to exercise any other appeal rights they may have under the Contract Disputes Act.  See, e.g., National Neighbors, Inc. v. United States, 839 F.2d 1539 (Fed. Cir. 1988).

ORDER

We grant the Postal Service’s Motion to Dismiss.  The appeal is dismissed for lack of jurisdiction.

Peter F. Pontzer
Administrative Judge
Board Member

I concur:
Gary E. Shapiro
Administrative Judge
Chairman

I concur:
Alan R. Caramella
Administrative Judge
Vice Chairman