CBCA 617

Robert T. Rafferty

May 10, 2007Judge DanielsGENERAL SERVICES ADMINISTRATION
Not published in the listingDismissed for lack of jurisdiction

Key Facts

Appellant
Robert T. Rafferty
Respondent agency
GENERAL SERVICES ADMINISTRATION
Judge
Daniels
Case number
CBCA 617
Decided
May 10, 2007The decision states May 10, 2007 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
The decision's own appearances block names no outside firm, which happens when the appellant appeared pro se, through one of its own officers, or through its in-house counsel.
Outcome
Dismissed for lack of jurisdiction
The appeal is DISMISSED FOR LACK OF JURISDICTION.
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 timeliness

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Appearances

For the appellant (pro se)
Robert T. Rafferty
Patchogue, NY
For the respondent
Judith A. Bonner
Office of Regional Counsel, General Services Administration
Philadelphia, PA
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 decision3 pages, 5,529 characters, read from the Board's own documentDecided May 10, 2007 on its own faceRespondent GENERAL SERVICES ADMINISTRATION Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

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Cases cited

5 cases this decision cites, grouped by the forum that decided each, in the order it first names them. 4 of them open at a publisher; the rest are shown without a link because no published copy of them was confirmed.

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DISMISSED FOR LACK OF JURISDICTION: May 10, 2007

CBCA 617

ROBERT T. RAFFERTY,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Robert T. Rafferty, pro se, Patchogue, NY.

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.

Judith A. Bonner, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent.

Before Board Judges DANIELS (Chairman), STERN, and DRUMMOND.

DANIELS, Board Judge.

By a contracting officer’s final decision dated September 27, 2006, the General Services Administration (GSA) asserted a claim in the amount of $855 against Robert T. Rafferty. Mr. Rafferty had been the high bidder on a boat being sold by GSA at auction. According to the decision, the agency was entitled to liquidated damages in the claimed amount because Mr. Rafferty did not comply with the auction requirement that he remove the boat from government premises within a prescribed period of time.

Mr. Rafferty filed a notice of appeal of the contracting officer’s decision on January 24, 2007. GSA filed a motion to dismiss the appeal for lack of jurisdiction, and Mr. Rafferty responded to the motion. We grant the motion and dismiss the appeal.

2 CBCA 617

Discussion

The Contract Disputes Act of 1978, which governs the Board’s review of contracting officer decisions, requires that an appeal of such a decision be filed “[w]ithin ninety days from the date of receipt of [the] decision.” 41 U.S.C. § 606 (2000). 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. 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); Tiger Natural Gas, Inc. v. General Services Administration, GSBCA 16039, 03-2 BCA ¶ 32,321, at 159,910-11.

The ninetieth day before Mr. Rafferty filed this appeal was October 26, 2006. Under the statute, as interpreted by the court, we may consider the case only if the appellant received the contracting officer’s decision on or after that date.

“Receipt” of a contracting officer’s decision, as that term is used in the Contract Disputes Act, means actual physical receipt of the decision by the contractor or its representative. Riley & Ephriam Construction Co. v. United States, 408 F.3d 1369, 1372 (Fed. Cir. 2005); Borough of Alpine v. United States, 923 F.2d 170, 172-73 (Fed. Cir. 1991). If the Government moves to dismiss a case for lack of jurisdiction, for the reason that the decision was received more than ninety days before the case was filed, the burden is on the Government to prove the early date of receipt. Riley & Ephriam, 408 F.3d at 1372; Tyrone Shanks, ASBCA 54538, 05-2 BCA ¶ 33,069, at 163,892.

GSA has provided a declaration in which the contracting officer states that she sent her decision to Mr. Rafferty by certified mail on or about September 28, 2006. The agency has also provided a copy of the return receipt for that letter, and the receipt shows a signature of Robert Rafferty and a date of delivery of October 3, 2006.

Mr. Rafferty has also presented information relating to receipt of the contracting officer’s decision. He told us, “Please be advised that my work often necessitates travel. As such, I did not personally receive the decision . . . until October 29, 2006.” We asked him to provide any documentation he might have which supports this assertion. He responded simply, “I cannot.”

GSA has carried its burden of proving that the decision was received by Mr. Rafferty or his representative prior to October 26. The return receipt shows that the letter was accepted on October 3 by someone who signed the appellant’s name on the receipt.

Although Mr. Rafferty’s statement that he did not personally receive the decision until _________________________

_________________________ _________________________

3 CBCA 617

October 29 would seem to imply that the individual who signed his name was someone other than himself, he has not alleged that this is so. In addition, he has not provided evidence (such as receipts from places of lodging) which might indicate that he was away from home during the period in question.

Mr. Rafferty has said that an order the Board sent to him by certified mail was accepted at his address by his son while he was away. Even if the contracting officer’s decision had the same fate, where the appellant is an individual and the envelope containing the decision is accepted by a close relative at the appellant’s address, unless the appellant can show that the individual who accepted the letter had no authority to do so, the decision is considered to have been received and the appeal time begins to run when the letter is accepted. See Ramos v. United States, 683 F.2d 396 (Ct. Cl. 1982) (same rule regarding decision of Merit Systems Protection Board); Pleasant Logging & Milling Co., AGBCA 79 172 CDA, 80-2 BCA ¶ 14,605; M. D. Willner, DOTCAB 73-9, 75-1 BCA ¶ 11,011 (1974); cf. Fed. R. Civ. P. 5(b)(2)(A)(iii) (service may be made by leaving a paper at a person’s dwelling house with someone of suitable age and discretion residing there). We find that receipt occurred on October 3 -- more than ninety days before this appeal was filed. We therefore have no jurisdiction to hear the case.

Decision

The appeal is DISMISSED FOR LACK OF JURISDICTION. STEPHEN M. DANIELS

Board Judge

We concur:

JAMES L. STERN

Board Judge

JEROME M. DRUMMOND

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Robert T. Rafferty, CBCA 617. 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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