DISMISSED FOR LACK OF JURISDICTION: March 25, 2014
CBCA 3604
TREASURE VALLEY FOREST PRODUCTS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
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.
Dan Balbach of Treasure Valley Forest Products, Boise, ID, appearing for Appellant. Heather R. Hinton-Taylor, Office of the General Counsel, Department of Agriculture, Ogden, UT, counsel for Respondent.
Before Board Judges SOMERS, McCANN, and STEEL.
SOMERS, Board Judge.
The United States Department of Agriculture, Forest Service (the Forest Service or the Government) moves to dismiss this appeal for lack of jurisdiction on the ground that appellant failed to file its appeal within the time constraints set forth in the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (Supp. IV 2011). Appellant disputes that the appeal was untimely filed. For the reasons set forth below, the motion to dismiss is granted.
Background
On January 9, 2009, the Forest Service entered into a contract with appellant. The contract required appellant to remove timber and to perform other specific work, such as installing culverts and decommissioning roads.
On August 2, 2013, the contracting officer served his final decision to appellant by email message, hand-delivery, and certified mail. Appellant responded to the contracting officer’s final decision that same day by email, questioning the contracting officer’s rationale for terminating the contract.
Appellant had ninety days to file its notice of appeal from the date that it received the contracting officer’s final decision. Appellant had to file its notice of appeal no later than October 31, 2013. Appellant submitted its appeal to the Board on Friday, November 1, 2013, at 10:01 p.m. ET, by electronic mail. Because the Board received the email filing after 4:30 p.m., ET, the Board docketed receipt of the appeal on the next working day, which was Monday, November 4, 2013.
Discussion
The CDA, under which the Board reviews CO decisions, requires that an appeal of such a decision to a board of contract appeals be filed “[w]ithin ninety days from the date of receipt of [the] decision.” 41 U.S.C. § 7104(a). Alternatively, within twelve months from the date of the contractor’s receipt of the CO’s final decision, a contractor may file its appeal with the United States Court of Federal Claims. 41 U.S.C. § 7104(b).
These deadlines for filing have 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. Failure to file an appeal within the ninety-day deadline divests the Board of jurisdiction to consider the case on its merits. Systems Development Corp. v. McHugh, 658 F.3d 1341 (Fed. Cir. 2011); Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Soto Construction Co. v. Department of Agriculture, CBCA 3210, 13 BCA ¶ 35,301; Tobias Schunck v. General Services Administration, CBCA 3079, 13 BCA ¶ 35,222; Geo-Imaging Consulting, Inc. v. Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318 (2009); Pixl Inc. v. Department of Agriculture, CBCA 1203, 09-2 BCA ¶ 34,187.
Regarding the deadline for filing an appeal with the Board, Board Rule 1(b)(5)(iii) provides that:
Filings submitted by electronic mail (email) are permitted . . . . The filing of a document by email occurs upon receipt by the Board on a working day, as defined in 6101.1(b)(9) (Rule 1(b)(9)). All email filings received by 4:30 p.m., Eastern Time, on a working day will be considered to be filed on that day.
Email filings received after that time will be considered to be filed on the next working day.
48 CFR 6101.1(b)(5)(iii) (2013). A working day means any day other than Saturday, Sunday, a federal holiday, a day on which the Office of the Clerk is required to close earlier than 4:30 p.m., or a day on which the Office of the Clerk does not open at all, as in the event of inclement weather. Board Rule 1(b)(9). The Board’s working hours are 8:00 a.m. to 4:30 p.m., ET, on each working day. Rule 1(b)(10).
In computing the ninety-day timeframe, the Board has held that “mailed” means placing the notice of appeal “into the custody of the U.S. Postal Service.” Tobias Schunck, 13 BCA at 172,827 (citing FM Diaz Construction, Inc. v. Department of Agriculture, CBCA 1870, 12-1 BCA ¶ 35,049, at 172,179 n.1 (2010)). Appeals that are not transmitted by the United States Postal Service, such as this one, are deemed filed when received by the Board. Id. (citing CWI Consultants & Services v. General Services Administration, GSBCA 13889, 98-1 BCA ¶ 29,343 (1997), reconsideration denied, 98-1 BCA ¶ 29,476; Charles T. Owen v. Agency for International Development, CBCA 694, 07-2 BCA ¶ 33,638). With these rules in mind, we note that appellant received its first copy of the final decision on August 2, 2013, both by email and by hand-delivery. Accordingly, under the rules, the notice of appeal was due by October 31, 2013. Appellant filed its notice of appeal after this date.
Appellant argues that the ninety-day time period started on August 8, 2013, and ran until November 6, 2013, because it did not receive a copy of the decision by certified mail until August 7, 2013. Appellant does not dispute, however, the fact that it received identical copies of the final version of the CO’s final decision on August 2, 2013, first by email and second by hand-delivery, in addition to receiving a third copy by certified mail. No matter how many additional times appellant received the final decision, the calculation begins to run from the first time appellant received the final decision, i.e., August 2, 2013. Ninety days from that date is October 31, 2013. By filing its notice of appeal after October 31, 2013, it failed to meet the deadline.
Decision
The motion to dismiss is granted. The appeal is DISMISSED FOR LACK OF
Jurisdiction.
___________________________
JERI KAYLENE SOMERS
Board Judge
We concur:
R. ANTHONY McCANN
Board Judge
CANDIDA S. STEEL
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Treasure Valley Forest Products, CBCA 3604. 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.