L-3 Communications Corporation, Link Simulation & Training Division v. Michael B. Donley, SECRETARY OF THE AIR FORCE

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1579
L-3 COMMUNICATIONS CORPORATION, LINK SIMULATION & TRAINING DIVISION,
Appellant,
v.
Michael B. Donley, SECRETARY OF THE AIR FORCE,
Appellee.
Appeal from the Armed Services Board of Contract Appeals in no. 54920,
Administrative Judge Monroe E. Freeman, Jr.
ON MOTION
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of the Air Force moves to dismiss L-3 Communications
Corporation, Link Simulation & Training Division's (L-3) appeal as untimely. L-3
opposes. The Secretary replies.'
The Secretary argues that L-3 did not file its notice of appeal in this case until
121 days after its receipt of the Armed Services Board of Contract Appeals' (ASBCA)
May 5, 2008 decision and that the appeal is thus untimely. The United States Postal
Service certified return receipt card indicates that L-3 received the ASBCA's decision on
May 12, 2008. L-3 filed its notice of appeal on September 10, 2008. In order to be
timely, the Secretary asserts that L-3 had to file its notice of appeal on September 9,
2008.

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An ASBCA decision is final unless a contractor appeals to this court within 120
days after receipt of the ASBCA's decision. 41 U.S.C. § 607(g)(1)(A). This filing
period is mandatory and jurisdictional. Placeway Const. Corp. v. United States, 713
F.2d 726, 728 (Fed. Cir. 1983).
Counsel for L-3 concedes that the certified return receipt identified by the
Secretary indicates receipt by someone on May 12. However, counsel asserts (1) that
he does not recognize the signature on the certified return receipt indicating receipt on
May 12, (2) that he actually received the decision in a separate mailing received by him
on May 14, 2008, or (3) that regardless of when his office received the decision, he did
not personally receive the decision until May 14, 2008.
Concerning counsel's first assertion, although counsel may not recognize the
signature, that does not necessarily mean that the document was not received on May
12, 2008. Counsel does not assert that he never received the decision, and the only
envelope that is asserted to have contained the decision at issue in this case had a
certified return receipt that indicates receipt on May 12.
Concerning counsel's second assertion, counsel states in a declaration:
I specifically recall receiving the Freeman Decision no earlier than
on the afternoon of Wednesday, May 14, 2008 (or, perhaps, on May 15).
When I first saw it, it was either inside or paper-clipped to an envelope
(the "Envelope") (Exhibit A hereto) post-marked 5/12/08, and bearing a
stamp saying "DELIVERY ATTEMPTED ON MAY 14, 2008." I kept the
envelope to document the fact that -- for purposes of calculating the
commencement of the 120-day time period for filing a notice of appeal -- I
had received the decision on May 14.
The court is not convinced by the inexactness of the declaration and L-3 has not
established that the certified return receipt indicating receipt on May 12 is incorrect. It is
not clear how one can "specifically recall" receipt but then not recall whether it was on
We grant the Secretary's motion for an extension of time to file its reply.
2008-1579 2

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cc: Roy A. Klein, Esq.
Matthew H. Solomson, Esq.
s20
ISSUED AS A MANDATE: FEB 6 2009
FEB 0 6 2009
JAN NORBALV
CLERK
May 14 or May 15. In any event, the "Envelope" included with counsel's declaration is
an envelope that indicates it contained a different Board document, as counsel for L-3
later concedes in his declaration.
Counsel's third assertion, that regardless of when his office received the decision
at issue, he personally did not receive the decision until May 14, 2008, is irrelevant. See
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93 (1990) (where action was
required to be filed within 30 days of receipt of notice, time to file begins on date of
receipt by the attorney's office and not the date that the attorney received notice). Thus,
this court must dismiss L-3's appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
The Secretary's motion to dismiss is granted.
Each side shall bear its own costs.
FOR THE COURT
FEB 6 2009
/s/ Jan Horbaly
Jan Horbaly FILED
Clerk U.S. COURT OF APPEALS FOR
THE FEDERAL oRcurr
Date
2008-1579 3

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