January 3, 2018

CORBIN'S TRUCKING, INC. v. UNITED STATES POSTAL SERVICE

PSBCA No. 6696

APPEARANCE FOR APPELLANT:
David P. Hendel, Esq.
Husch Blackwell LLP

APPEARANCE FOR RESPONDENT:
Richard Y. Rho, Esq.
United States Postal Service Law Department

DISMISSAL

The United States Postal Service and Corbin’s Trucking, Inc. both move to dismiss this matter without prejudice, but disagree as to how the Board should style that dismissal.
On September 13, 2017, the Postal Service terminated its mail transportation contract with Corbin’s Trucking, pursuant to the Termination with Notice clause which provides for termination by either party on 60 days’ notice without cost.  The termination letter did not include language indicating that it served as a contracting officer’s final decision.  (AF 1 at 8, 63-64; AF 3).
In response, on September 17, 2017, Corbin’s Trucking sent a letter to the Postal Service’s transportation specialist, with a copy to its contracting officer.  The subject line of that letter stated “Appeal of HCR 48067 – PVS Award.”  The first sentence of the letter stated “Please allow this correspondence to serve as my appeal of HCR 48067 – PVS Award.”  Corbin’s Trucking requested that the Postal Service withdraw the termination and reconsider its action, or it warned that it would seek unquantified damages for “the costs we incur from the termination, our lost profits, interest, and attorney fees.”  (AF 4).
On September 20, 2017, counsel for the Postal Service filed the termination notice and Corbin’s Trucking’s letter in the Board’s electronic filing system for adjudication.¹ The Board docketed the matter the same day.
The Postal Service moved to dismiss without prejudice because the Board lacks jurisdiction, under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109, over an appeal of a termination on notice, without an associated monetary claim.  It argues that the plain language of the September 17 letter, which identified itself as an appeal, requires a conclusion that the termination notice had been appealed.  Corbin’s Trucking agreed that this matter should not proceed farther because it did not submit a claim.  However, it also argues that the Board should find that its September 17 letter was not a notice of appeal for a variety of reasons, and should not have been forwarded to the Board.  Corbin’s Trucking argues that this matter was docketed improvidently, and should be removed from the docket on that basis.
As recognized by both parties, in the absence of an associated monetary claim, the Board lacks jurisdiction over an appeal of the exercise of a Termination on Notice clause.  See Shawn G. Logan, PSBCA No. 6507, 14-1 BCA ¶ 35,609.  Thus, regardless of whether we grant the Postal Service’s motion to dismiss, or instead accept Corbin’s Trucking’s position that this matter should not have been docketed in the first place, the result will be the same:  dismissal without prejudice.  Such a dismissal should have no effect on any future legal action by Corbin’s Trucking.  See, e.g., Bonneville Assocs., Ltd. P’ship v. Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (recognizing the federal rule that dismissal without prejudice renders the proceedings a nullity, leaving the parties as if the action never had been brought); Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539, 1542-43 (Fed. Cir. 1988) (election doctrine does not apply unless the initial forum possessed jurisdiction over the proceeding that would preclude a subsequent election of forums).
We decline to engage in the academic exercise of deciding whether Corbin’s Trucking’s September 17, 2017 letter constituted a notice of appeal because the result will be the same.

ORDER

The Board lacks jurisdiction.  This matter is dismissed without prejudice.

Gary E. Shapiro
Administrative Judge
Chairman

I concur:
Alan R. Caramella
Administrative Judge
Vice Chairman

I concur:
Diane M. Mego
Administrative Judge
Board Member