MOTION FOR PARTIAL DISMISSAL DENIED:  March 22, 2024
CBCA 8002
MLU SERVICES, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Lochlin B. Samples of Smith, Currie & Hancock LLP, Atlanta, GA; and Allison
Geewax of Smith, Currie & Hancock LLP, Tysons, VA, counsel for Appellant.
Andrew Michael Thabo Hickey, Office of Chief Counsel, Federal Emergency
Management Agency, Department of Homeland Security, Washington, DC, counsel for
Respondent.
Before Board Judges LESTER, RUSSELL, and SULLIVAN.
LESTER, Board Judge.
The Federal Emergency Management Agency (FEMA) has filed a motion seeking to
dismiss the portion of this appeal challenging the Government’s affirmative monetary claim
against appellant, MLU Services, Inc. (MLU).  Four days before FEMA filed its motion,
MLU missed a deadline for responding to FEMA’s allegations in support of its government
claim.  We do not need the parties to brief FEMA’s motion.  It is denied.


CBCA 8002 2
Background
In this appeal, MLU challenges a contracting officer’s final decision in which the
contracting officer both denied MLU’s affirmative monetary claim of $2.916 million and
asserted a government claim demanding that MLU pay FEMA $2.979 million.  On
January 25, 2024, MLU filed its appeal challenging the contracting officer’s decision.
The Board issued an initial procedures order on January 30, 2024, directing MLU to
file its complaint in the appeal no later than February 26, 2024, setting forth its monetary
claims against FEMA in simple, concise, and direct terms.  FEMA was directed to file an
answer within thirty days after receiving MLU’s complaint and, because the final decision
at issue included FEMA’s assertion of a monetary claim, to provide an addendum setting
forth in simple, concise, and direct terms the basis of FEMA’s monetary claim against MLU. 
Within fifteen days after FEMA filed its answer and addendum, MLU was to file a response
to FEMA’s addendum (in the form of an answer) addressing the allegations supporting
FEMA’s affirmative monetary claim.
Consistent with the Board’s initial procedures order, MLU filed its complaint in this
appeal on February 26, 2024.  FEMA then filed its answer and addendum on February 29,
2024.  Pursuant to the Board’s initial procedures order, MLU’s response to FEMA’s
addendum was due within fifteen days of the addendum’s filing, or March 15, 2024.  MLU
did not file a response by that deadline.
On March 19, 2024, four days after the missed deadline, FEMA filed a motion to
dismiss the portion of MLU’s appeal challenging the Government’s affirmative monetary
claim, arguing that “Board precedent dictates that dismissal for failure to prosecute is
appropriate when a party is unresponsive to an order requiring some action by them.” 
Respondent’s Motion for Partial Dismissal at 2.  FEMA also argued that the Board “may
impose sanctions, including dismissal, when a party or its attorney fails to comply with any
direction or order of the Board.”  Id.  FEMA further requested that, if the Board declined to
grant the motion for partial dismissal, the Board should strike that part of MLU’s notice of
appeal challenging the agency’s affirmative monetary claim; take the facts alleged in
FEMA’s addendum as conclusively established; prohibit MLU from opposing FEMA’s
monetary claim; prohibit MLU from introducing evidence relating to any claims or defenses
to any part of FEMA’s addendum; prohibit MLU from challenging the accuracy of any of
FEMA’s evidence related to facts that FEMA alleged in its addendum; draw evidentiary
inferences adverse to MLU as they relate to any claims or defenses in FEMA’s addendum;
and impose such other relief as the Board deems appropriate.  Id. at 3.
We do not need to await a response from MLU to FEMA’s motion to dismiss, a
motion which we view as bordering on frivolous, before addressing it.

CBCA 8002 3
Discussion
“Dismissal for failure to prosecute is one of the harshest sanctions available to us[,]
and, as a result, it is an option we use sparingly and only when the evidence presented in
support of the motion is especially convincing.”  Property Maintenance Corp. v. Department
of the Treasury, GSBCA 12445-TD, 94-2 BCA ¶ 26,675, at 132,694; see Roberts v. Ferman,
826 F.3d 117, 122 (3d Cir. 2016) (“[D]ismissal for failure to prosecute ‘must be a sanction
of last, not first, resort.’” (quoting Knoll v. City of Allentown, 707 F.3d 406, 411 (3d Cir.
2013)).  It should be employed only in extreme situations, “when there is a clear record of
delay or contumacious conduct and other less drastic sanctions have been unavailing.” 
Western Pacific Construction, Inc., DOT BCA 2730, 96-2 BCA ¶ 28,584, at 142,712; see
Globe Disposal Co., VABCA 2213, 85-3 BCA ¶ 18,274, at 91,730 (finding dismissal for
failure to prosecute appropriate “only where a party’s conduct shows a willful and
contemptuous disregard of the Board Rules”).  Further, although “the absence of notice as
to the possibility of dismissal or the failure to hold an adversary hearing [does not]
necessarily render such a dismissal void,” Claude E. Atkins Enterprises, Inc. v. United States,
899 F.2d 1180, 1185 (Fed. Cir. 1990) (quoting Link v. Wabash Railroad Co., 370 U.S. 626,
632 (1962)), to satisfy due process concerns, “the record must show that the party upon
whom the sanction of dismissal is to be applied was knowledgeable of the consequences of
its actions.”  Western Pacific, 96-2 BCA at 142,712 (citing Link, 370 U.S. at 632).
FEMA seeks dismissal of MLU’s challenge to its monetary claim solely because
MLU did not file a timely response to FEMA’s addendum.  The “sanction of dismissal . . .
for failure to prosecute should not be imposed for a single instance of failure to comply with
a Board order.”  Williamson v. Merit Systems Protection Board, 334 F.3d 1058, 1063 (Fed.
Cir. 2003) (citation omitted).  Even the alternative “sanctions” that FEMA requests, which
would effectively preclude MLU from contesting the merits of FEMA’s affirmative
monetary claim, are an inappropriate response to the missed deadline.  See Refac
International, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1254 (Fed. Cir. 1990) (“Severe sanctions
such as taking allegations as established . . . are authorized only in extreme circumstances”
involving “willfulness, bad faith or fault.”); see also Duffy Leasing Corp., PSBCA 3642,
94-3 BCA ¶ 27,100, at 135,044 (holding that the late filing of an answer “does not provide
a basis for judgment in favor of [the complainant] where there has been no showing that [the]
late filing prejudiced [the other party’s] ability to prosecute its appeal.”); Gibmak Corp.,
ASBCA 7077, 1962 BCA ¶ 3436, at 17,619 (finding that the board’s rules did not
contemplate precluding consideration of the merits of an appeal solely because the answer
was not timely filed).
When an answer is not filed, a board may enter a general denial of the allegations in
the complaint or, in this instance, FEMA’s addendum.  See, e.g., ANADAC Information
Systems, Inc., GSBCA 10699, 91-1 BCA ¶ 23,384, at 117,351-52 (1990); Hercules

CBCA 8002 4
Construction Co., VABCA 2625, et al., 1987 WL 46308 (Oct. 13, 1987); Walber
Construction Co., HUD BCA 79-385-C17, et al., 1982 WL 175910 (Sept. 2, 1982).1  We
elect to do so in the circumstances here.  No sanction against MLU is warranted.
Decision
For the foregoing reasons, we enter a general denial on MLU’s behalf of the
allegations set forth in FEMA’s addendum filed February 29, 2024.  FEMA’s motion for
partial dismissal of this appeal is DENIED.  The Board will schedule further proceedings in
this appeal by separate order.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
   Beverly M. Russell             Marian E. Sullivan          
BEVERLY M. RUSSELL MARIAN E. SULLIVAN
Board Judge Board Judge
1 Prior to September 2018, the Board’s Rules expressly provided that the Board
could, if warranted, enter a general denial if no answer was timely filed.  48 CFR 6101.6(c)
(2017).  Although that language is not a part of the current version of the Board’s Rules,
which became effective September 17, 2018 (83 Fed. Reg. 41009 (Aug. 17, 2018)), “[t]he
Board, under its inherent case management authority, has broad discretion to manage the
litigation on its docket.”  Golden West Refining Co., EBCA C-9208134, et al., 94-1 BCA
¶ 26,319, at 130,908 n.1 (1993).