United States Court of Appeals for the Federal Circuit
04-5152
RILEY & EPHRIAM CONSTRUCTION COMPANY, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Steven L. Smith, Smith, Cooksey & Vickstrom, PLLC, of Charlotte, North
Carolina, argued for plaintiff-appellant.
James D. Colt, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel on
the brief was Bryan O’Boyle, Senior Trial Attorney, Air Force Legal Services Agency, of
Arlington, Virginia.
Appealed from: United States Court of Federal Claims
Judge Lawrence M. Baskir
United States Court of Appeals for the Federal Circuit
04-5152
RILEY & EPHRIAM CONSTRUCTION COMPANY, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: May 18, 2005
__________________________
Before NEWMAN, CLEVENGER, and RADER, Circuit Judges.
CLEVENGER, Circuit Judge.
Riley & Ephriam Construction Company, Inc. ("R&E") appeals the grant of
summary judgment in favor of the United States ("government") by the Court of Federal
Claims based on the determination that R&E's claims were untimely filed under the
Contract Disputes Act ("CDA"). Riley & Ephriam Constr. Co. v. United States, 61 Fed.
Cl. 405 (2004). Because the Court of Federal Claims erred in determining when the
contracting officer's final decision had been received by the contractor, it incorrectly
determined that the statute of limitations barred R&E's claim. We reverse the grant of
summary judgment in favor of the government and hold that R&E's claims were timely
filed.
I
R&E entered into a contract with the government that could not be completed as
originally agreed due to unforeseen conditions at the jobsite. R&E listed a Post Office
box ("P.O. box") in Stone Mountain, Georgia, as its contact address for matters relating
to this contract. On March 8, 2000, after the parties could not agree to an adjustment of
the contract, R&E applied for an equitable adjustment in the amount of $294,097. While
the contracting officer was reviewing this request, R&E closed its corporate offices and
ran the business from a home. R&E continued to maintain the Stone Mountain P.O.
box.
The equitable adjustment was finally denied on November 27, 2001. On this
date, the contracting officer mailed the final decision in the equitable adjustment claim
via certified letter addressed to R&E's P.O. box and faxed a copy of the final decision to
the fax number on file for R&E's attorney. R&E's attorney claims to have never received
this fax and the government is unable to produce a fax transmittal sheet. The certified
letter arrived at the Post Office on November 30, 2001, at which time a postal employee
placed a notice in R&E's box that the letter could be picked up at the counter. The Post
Office placed a second notice in the P.O. box on December 19, 2001. R&E did not pick
up the letter and on December 29, 2001, the Post Office returned the certified letter
unsigned to the contracting officer. Upon receipt of the unclaimed certified letter and
the unexecuted return receipt form, the government was on notice that no authorized
person had received the certified mail.
In January of 2002, the contracting officer called the attorney to notify him that
the letter was returned and asked if the attorney would accept another copy of the final
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decision on behalf of R&E. On January 30, 2002, the contracting officer faxed the
attorney a message that the letter had been resent to the firm's address. Less than one
year later, on January 24, 2003, R&E filed suit in the Court of Federal Claims for
$306,039.33 in damages resulting from the additional work performed on the contract.
Before the Court of Federal Claims, the government moved for summary
judgment based on the statute of limitations time bar in the CDA that requires suit to be
filed within twelve months of the contractor's actual receipt of the contracting officer's
final decision. 41 U.S.C. § 609(a)(3) (2000). The Court of Federal Claims found that
R&E had received the final decision because both the fax sent on November 27, 2001,
and the certified letter sent on the same date were deemed actually received by the
contractor. Riley & Ephriam, 61 Fed. Cl. at 411. Because R&E filed suit on January 24,
2003, the Court of Federal Claims found that the twelve-month statute of limitations
barred the claim and granted the government's motion for summary judgment. Id. R&E
now appeals the decision of the Court of Federal Claims. We have jurisdiction over an
appeal from a final decision of the Court of Federal Claims pursuant to 28 U.S.C.
§ 1295 (2000).
II
This court reviews the grant of summary judgment de novo. Insituform Techs.,
Inc. v. CAT Contracting, Inc., 385 F.3d 1360, 1377 (Fed. Cir. 2004). Summary
judgment is appropriate when the moving party is entitled to judgment as a matter of law
and no disputes over material facts remain. Fed. Cl. R. 56(c). The moving party bears
the burden of demonstrating the absence of a genuine issue of material fact. Celotex
04-5152 3
Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). All justifiable inferences should be drawn
in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III
The burden is on the government to prove the earlier date of receipt. See, e.g.,
Pub. Serv. Cellular, Inc., ASBCA No. 52489, 00-1 BCA ¶ 30,832 (Mar. 2, 2000). The
CDA states that:
a contractor may bring an action directly on the claim in the United States
Court of Federal Claims . . . . [This] action . . . shall be filed within twelve
months from the date of the receipt by the contractor of the decision of the
contracting officer concerning the claim, and shall proceed de novo in
accordance with the rules of the appropriate court.
41 U.S.C. § 609(a)(1), (3) (2000). The CDA requires that "[t]he contracting officer shall
issue his decisions in writing, and shall mail or otherwise furnish a copy of the decision
to the contractor." § 605(a). The implementing regulations further require that the
decision is to be provided to the contractor via "certified mail, return receipt requested,
or by any other method that provides evidence of receipt." 48 C.F.R. § 33.211(b) (2004)
(emphasis added).
The Federal Circuit has interpreted receipt by the contractor to mean "actual
physical receipt of that decision by the contractor [or his representative]." Borough of
Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991) (quoting Pathman Constr. v.
United States, 817 F.2d 1573, 1577 (Fed. Cir. 1987)). "[O]bjective indicia of receipt by
the contractor" must be shown to establish the date of proper delivery of the decision by
the contracting officer. See Borough of Alpine, 923 F.2d at 172. This court has found
that "[b]y linking the limitations period to receipt by the contractor, the CDA eliminates
disputes about the time of actual notice, fault and misaddressing a letter, or the internal
mail procedures of various contractors." Id. at 172.
04-5152 4
In this case, the government has failed to produce the "evidence of receipt" by
the contractor that is required by the CDA implementing regulations. The fax of
November 27, 2001, and the letter received at the Stone Mountain Post Office on
November 30, 2001, will be addressed in turn.
A
Although some courts have held that a fax confirmation sheet produces a
rebuttable presumption of receipt, see Stevens Shipping & Terminal Co. v. M/V Japan
Rainbow II, 334 F.3d 439, 444 (5th Cir. 2003), we need not address whether a
confirmation sheet is "evidence of receipt" under the CDA because the government
cannot produce a fax confirmation sheet for the November 27, 2001, fax to R&E's
attorney. The government produced instead a fax cover sheet, phone records
indicating a 2.6-minute call to the firm fax line and a statement from the contracting
officer that the machine indicated electronically that the transmission was a success.
The Court of Federal Claims found that "the evidence is overwhelming-and undisputed-
that a fax was sent and received in [the] law office on that day." Riley & Ephriam,
61 Fed. Cl. at 409. We disagree.
R&E's attorney disputes receipt of the fax. The firm also contends that the fax
number was changed when the firm relocated. Moreover, we cannot infer receipt from
evidence of transmission. Proof of message exit from a transmitting machine cannot
serve as a proxy for proof of actual receipt of the sent message by a remote receiving
terminal. Simply put, the evidence offered by the government is not the type of
"objective indicia of receipt" that the CDA requires to begin the limitations period. The
fax cover sheet is only evidence that the fax was prepared. The phone records and
04-5152 5
contracting officer's statement indicate a fax was transmitted but do not evidence receipt
of the fax by the contractor's attorney. The Boards of Contract Appeal have similarly
found that a fax transmission sheet is insufficient to show receipt by the contractor
stating "[w]e have held that a 'successful' transmission report for a fax transmission was
not reliable evidence of receipt of the final decision where the Government did not
otherwise confirm receipt." Pub. Serv. Cellular, Inc., ASBCA No. 52,489, 00-1 BCA
¶ 30,832. Fax receipt was usually confirmed in these cases by calling the intended
recipient of the decision. See, e.g., Tyger Constr. Co., ASBCA Nos. 36,100, 36,101,
88-3 BCA ¶ 21,149 (Aug. 25, 1988). The Boards of Contract Appeal have also been
reluctant to "make the quantum leap and infer from the Government's transmission
report's statement 'Transmission OK' that the final decision was received by [the
contractor]." Pub. Serv., ASBCA No. 52,489. We correspondingly find that receipt by
the contractor cannot be inferred from the contracting officer's statement that the
machine indicated a successful transmission. In essence, the government has not
offered any evidence that the fax was actually received by the contractor's attorney.
Therefore the Court of Federal Claims erroneously measured the statute of limitations
from the date of the fax transmission.
We note the sound judgment reflected in the decisions of the Boards of Contract
Appeal that have recognized the ease and simplicity with which the government can
gain confidence that a fax transmission has been actually received by the contractor.
All the government has to do is make a simple telephone call to the contractor or its
authorized representative to affirm actual receipt of the fax. This simple step would give
the government the assurance of actual receipt that the regulation requires it to have.
04-5152 6
Indeed, the regulation's preferred method of transmission by certified mail return receipt
has the built-in confirmation of receipt that a simple telephone call after a fax
transmission would supply.
B
In the alternative, the Court of Federal Claims traced the start of the statute of
limitations to the date the certified letter was received at the Stone Mountain Post
Office. The government contends that R&E received the certified letter on the date that
it was processed at the postal facility and a notice that the letter could be picked up at
the counter was placed in R&E's P.O. box. The government asserts that "receipt
occurred when the package verifiably arrived at the address R&E had chosen and was
being held for their acceptance." As with the fax transmission, we hold that the
government has not shown objective indicia of receipt of the certified letter.
The contracting officer is obliged by 48 C.F.R. § 33.211(b) to send the final
decision via "certified mail, return receipt requested, or by any other method that
provides evidence of receipt." The certified mail receipt, Post Office form 3811, the
Domestic Return Receipt, specifically requires the receiving party to print its name, sign
the form upon receipt, and note the date of delivery. In this case, the Post Office did not
complete any portion of the certified mail receipt nor was the letter ever released from
the custody of postal employees. Instead, the Post Office returned the entire letter to
the contractor marked as undeliverable, unaccepted and unsigned by R&E, on
December 29, 2001.
Nonetheless, the Court of Federal Claims found that "[p]laintiff's officers implicitly
consented to allow Post Office employees to handle and accept mail on behalf of
04-5152 7
Plaintiff." Riley & Ephriam, 61 Fed. Cl. at 410. Although the Federal Circuit has held
that receipt by a contractor includes receipt by the contractor's representative, see
Borough of Alpine, 923 F.2d at 172-73, there is no evidence that R&E consented to
Post Office receipt of its certified mail.
The government attempts to analogize R&E's box rental to that of a customer of
a commercial mail handler or private mailbox service that has the authority to accept
mail for its customers. A private mail handler of this type was at issue in Policy Analysis
Co. v. United States, 50 Fed. Cl. 626, 628 (2001). In Policy Analysis, the boxholder had
an explicit contract with the commercial mail box company that stated: "[a]gent will place
mail received on behalf of renter in the box each weekday that mail is received from the
U.S. Postal Service." Policy Analysis, 50 Fed. Cl. at 628. The clerk in Policy Analysis
received and signed for the certified letter at issue in the case and returned the receipt
to the sender. In essence, the renter of the box deputized the clerk at the commercial
mail center to receive mail on its behalf. There is no such relationship here between the
Post Office and R&E. R&E's box was simply real estate—a place for its mail to be
deposited.
In light of the above, the case law relied on by the government, Borough of
Alpine and Policy Analysis, does not dictate finding the letter was received by the
contractor when it was in possession of the Stone Mountain Post Office. The Post
Office was not an "agent" for R&E, R&E never authorized the Post Office to sign for its
mail, and further, the letter was not signed on the return receipt by a postal employee to
indicate acceptance. The letter was simply returned undelivered to the contracting
04-5152 8
officer. Therefore, we find that the government has not shown objective evidence of
receipt by the contractor of the November 27, 2001, certified letter.
IV
Neither the fax communication nor the certified letter was received by the
contractor as required under the CDA in order to begin the statute of limitations period.
It is undisputed that R&E did receive the final decision of the contracting officer through
its attorney on January 30, 2002, when the return of the undelivered certified letter put
the government on notice that its first delivery attempt had legally failed and prompted
the government to make a lawful delivery of the contracting officer's final decision.
Because suit was filed on January 24, 2003, the Court of Federal Claims erred when it
granted summary judgment in favor of the government based on the erroneous finding
that R&E's claims were untimely filed. Accordingly, we reverse and remand for
adjudication on the merits.
REVERSE AND REMAND
04-5152 9