CBCA 1063

Kenneth W. Battley, Trustee for the Estate of Martech USA, Inc.

Jul 1, 2008Judge SomersSOCIAL SECURITY ADMINISTRATION
Not published in the listingDismissed for lack of jurisdiction

Key Facts

Appellant
Kenneth W. Battley, Trustee for the Estate of Martech USA, Inc.
Respondent agency
SOCIAL SECURITY ADMINISTRATION
Judge
Somers
Case number
CBCA 1063
Decided
Jul 1, 2008The decision states Jul 1, 2008 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
Watt, Tieder, Hoffar & Fitzgerald, LLP
Outcome
Dismissed for lack of jurisdiction
SSA's motion is granted.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

Jurisdiction and timelinessPayment and interest

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions. They are ordered strongest first.

Appearances

For the appellant
Robert G. Watt
Watt, Tieder, Hoffar & Fitzgerald, LLP
McLean, VA
For the respondent
Clary Simmonds
Office of the General Counsel, Social Security Administration
Baltimore, MD
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision4 pages, 7,064 characters, read from the Board's own documentDecided Jul 1, 2008 on its own faceRespondent SOCIAL SECURITY ADMINISTRATION Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

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Cases cited

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DISMISSED FOR LACK OF JURISDICTION: July 1, 2008

CBCA 1063

KENNETH W. BATTLEY, TRUSTEE FOR THE ESTATE OF MARTECH USA, INC.,

Appellant,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Robert G. Watt of Watt, Tieder, Hoffar & Fitzgerald, LLP, McLean, VA, counsel for Appellant.

Clary Simmonds, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent.

Before Board Judges SOMERS, GOODMAN, and DRUMMOND.

SOMERS, Board Judge.

This appeal arises out of a contract between Martech USA, Inc. (Martech) and the Social Security Administration (SSA) for renovation services. After completing the scope of work under the contract, but before SSA paid Martech the remaining contract balance of $153,792.40, Martech filed a petition for bankruptcy on December 19, 1993. Due to the bankruptcy filing, SSA deferred payment to Martech pending resolution of various government claims on other Martech projects.

2 CBCA 1063

On May 20, 1999, Kenneth W. Battley, the trustee in bankruptcy for the estate of Martech, submitted a certified claim under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601- 613, for the recovery of the outstanding contract balance. An SSA contracting officer denied the claim on November 1, 1999. In her final decision, the contracting officer stated:

After you submitted your request for payment to SSA in July 1999, SSA received the enclosed request from the United States Air Force to setoff any amount that is owed by SSA to Martech. We have confirmed that nothing in the bankruptcy proceeding precludes SSA from paying this Government setoff.

As you know, the judge in the Martech bankruptcy proceeding issued an order in May, 1995, allowing Government setoff. Further, the Government’s setoff claim has a greater priority than your claim for payment as the debtor-trustee in bankruptcy.

Based upon the foregoing, we have determined that no amount is payable to you.

Complaint ¶ 20, Exhibit 6. The decision concluded by stating that it was “the final decision of the Contracting Officer” and notified Martech of the ninety-day deadline for appeals to the General Services Board of Contract Appeals (GSBCA) and the twelve-month deadline for filing suits in the Court of Federal Claims. Mr. Battley received the final decision by certified mail on December 8, 1999.

Mr. Battley did not appeal the November 1, 1999, final decision to either the GSBCA or to the Court of Federal Claims. Instead, on April 19, 2006, Mr. Battley requested a second final decision from the SSA concerning the same contract balance. In the April 19 claim, Mr. Battley contends that he had recently learned that SSA had retained the contract balance, and that it had not been used to set off any debts due to the Air Force. Mr. Battley certified the second claim and requested a final decision. By letter dated September 5, 2006, SSA informed Mr. Battley that it did not intend to issue another final decision. On February 1, 2008, Mr. Battley filed an appeal with this Board based upon the “deemed denial” of his April 19, 2006, certified claim.

SSA moves the Board to dismiss the appeal for lack of jurisdiction. The agency notes that the contractor received the contracting officer’s final decision on December 8, 1999; the decision advised the contractor that it could appeal to the GSBCA within the next ninety days; and the appeal was not filed until February 1, 2008, well beyond the ninety-day deadline. The parties do not dispute the timing and content of the communications at issue. Nonetheless, 3 CBCA 1063

Mr. Battley opposes the motion, arguing that the November 1, 1999, decision did not unequivocally and permanently deny the claim.

SSA’s motion is well taken.

The CDA, which governs the Board’s review of contracting officer decisions, requires that an appeal of such decision be filed “[w]ithin ninety days from the date of receipt of [the] decision.” 41 U.S.C. § 606 (2000). The plain language of the CDA clearly confers finality and unreviewability of a contracting officer’s decision that is not properly appealed within the statutory period provided. That finality is not limited to the contracting officer’s authority to issue such a decision or the validity of the contracting officer’s decision. See, e.g., United States v. Kasler Electric Co., 123 F.3d 341, 346 (6th Cir. 1997). The statute affords the opportunity to challenge the authority and/or validity of the decision, provided the challenge is made within the statutory period. If a challenge is not made within the statutory period, section 605(b) mandates that the contracting officer’s decision “be final and conclusive and not subject to review.” 41 U.S.C. § 605(b). This deadline for filing has been strictly construed by the Court of Appeals for the Federal Circuit because the authorization to make the filing is a waiver of sovereign immunity. A late filing divests the Board of jurisdiction to consider the case on its merits. Three Rivers Timber, Inc. v. Department of Agriculture, CBCA 1044, 08-1 BCA ¶ 33,833, at 167,456 (citing Renda Marine, Inc. v. United States, 509 F.3d 1372, 1381 (Fed. Cir. 2007); D. L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997); Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982); Robert T. Rafferty v. General Services Administration, CBCA 617, 07-1 BCA ¶ 33,577, at 166,340). Accordingly, because Mr. Battley did not file the appeal until after the ninetieth day from his receipt of the decision in question, we do not have jurisdiction to consider the appeal. In addition, we reject Mr. Battley’s argument that the appeal could be filed on a “deemed denial” basis resulting from the contracting officer’s failure to issue a final decision on the “new” April 19, 2006, claim. The established test for what constitutes a “new” claim is whether “claims are based on a common or related set of operative facts. If the court will have to review the same or related evidence to make its decision, then only one claim exists.” Environmental Safety Consultants, Inc., ASBCA 54995, 06-1 BCA ¶ 33,230, at 164,666 (citing Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)). In the April 19, 2006, claim, Mr. Battley sought the remaining contract balance of $153,792.40, plus interest from November 7, 1994. The amount sought is identical to that sought in the original claim, with the exception of seeking CDA interest on the balance. The fact that Mr. Battley identified a date from which interest should run does not make the claim of April 19, 2006, a “new” claim. Id. (citing Aerojet Ordnance Tennessee, ASBCA 36089, 91-3 BCA ¶ 24,130, at 120,773 (as long as the essential character of a claim remains the same, revision of the amount is permitted)).

4 CBCA 1063

Decision

SSA’s motion is granted. The case is DISMISSED FOR LACK OF

Jurisdiction.

JERI KAYLENE SOMERS

Board Judge

We concur:

ALLAN H. GOODMAN

Board Judge

JEROME M. DRUMMOND

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Kenneth W. Battley, Trustee for the Estate of Martech USA, Inc., CBCA 1063. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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