MOTION TO DISMISS IN LIEU OF ANSWER DENIED:
November 7, 2019
CBCA 6561
BES DESIGN/BUILD, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
David A. Horton, Daphne, AL, counsel for Appellant.
Mary A. Mitchell, Office of General Counsel, Department of Veterans Affairs,
Houston, TX, counsel for Respondent.
BEFORE Judges GOODMAN, ZISCHKAU, and O’ROURKE.
GOODMAN, Board Judge.
Respondent, Department of Veterans Affairs, has filed a motion to dismiss this appeal
in lieu of an answer on the basis that appellant, BES/Design Build LLC, has failed to
prosecute the appeal.  We deny the motion.
Background
On September 25, 2019, the Board issued an order in response to good cause shown
by appellant’s counsel, extending the time for appellant to file its complaint until October 10,
2019.   On October 21, 2019, appellant had not filed its complaint, and respondent filed a
motion to dismiss with prejudice in lieu of answer, which reads in relevant part:


CBCA 6561 2
Respondent requests that the instant Appeal be dismissed under CBCA Rule
12(b)(4) for failure to prosecute the instant Appeal.  The filing of a complaint
is evidence of Appellant’s intent to prosecute its appeal.  Appellant’s failure
to file its complaint and failure to notify the Board or Respondent of a request
to extend the time for filing of same makes clear Appellant’s abandonment of
the instant Appeal.  “Under [former] Board Rule 33(c) (48 CFR 6101.33(c)
(2016)), now CBCA Rule 35(b), the Board has the authority to dismiss a case
for failure to prosecute where a party has repeatedly failed to comply with the
Board’s orders.  Elite Quality Services, LLC v. Department of Commerce,
CBCA 5050, 16-1 BCA ¶ 36,269;  Medtek, Inc. v. Department of Veteran
Affairs, CBCA 1544, 09-2 BCA ¶ 34,285; see Kadin Corp. v. United States,
782 F.2d 175, 176 (Fed. Cir. 1986).  This is such a situation.
. . .
Alternatively, should the Board find that Appellant’s failure to file its
complaint does not equate to a failure to prosecute under CBCA Rule 12(b)(4),
CBCA Rule 35(b) provides that “[i]f a party or its representative, attorney,
expert or consultant fails to comply with any direction or order of the Board
. . . the Board may make such orders as are just, including imposition of
appropriate sanctions.  Rule 35(b).  Specifically, the Board may “include as a
sanction dismissal of the case or any part thereof.”  CBCA Rule 35(b)(6).
On October 22, 2019, appellant filed its complaint with the Board.  On October 31,
2019, respondent filed its answer, and included in its answer was an affirmative defense
which reiterated its motion to dismiss as follows:
Appellant failed to respond to this Board’s Order to file the Petition [sic] on
or before October 10, 2019 and failed to provide just cause for its failure to
comply with this Board’s Order; thus, this Petition [sic] should be
DISMISSED, WITH PREJUDICE.
Discussion
The cases cited in respondent’s motion hold that dismissal for failure to prosecute is
appropriate when a party has repeatedly failed to comply with the Board’s orders.  It is
reserved for egregious situations, where parties have repeatedly failed to comply with the
tribunal’s orders.  The circumstances of these cases include the Board’s repeated attempts
to contact a party with no response, followed by the party’s subsequent failure to respond to
a Board order directing a party to show cause why the case should not be dismissed. 

CBCA 6561 3
The circumstances of the instant case do not justify dismissal. Appellant did not
repeatedly fail to comply with orders of the Board, nor did the Board issue an order to show
cause.  Appellant’s filing of the complaint eleven days after the extended time period did not
prejudice respondent.  Respondent has not stated sufficient grounds for dismissal for failure
to prosecute.
Decision
Respondent’s motion to dismiss is DENIED.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge
We concur:
  Jonathan D. Zischkau       Kathleen J. O’Rourke     
JONATHAN D. ZISCHKAU KATHLEEN J. O’ROURKE
Board Judge Board Judge