## 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 defendantappellee. 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 Stat es ("government") by the Court of Federal Claims based on the determinati on 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 C ourt of Federal Claims erred in determining when the contracting officer's final de cision had been received by t he 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 enter ed into a contract with the gover nment that could not be completed as originally agreed due to unfores een conditions at t he jobsite. R&E listed a Post Office box ("P.O. box ") in St one Mount ain, Georgia, as its contact address for matters relating to this contract. On March 8, 2000, after t he parties cou l d not agree to an adjustment of the contract, R&E applied for an equitable adju stment in the amount of $294,097. While the contracting officer was reviewing this request, R&E closed its c o rporate offices and ran the business from a home. R&E cont inued to maintain the Stone M ountain P.O. box. The equitable adjustment was finally denied on Nov e mber 27, 2001. O n 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 fax ed 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 pr oduce 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 t he 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 Po st Office returned the certified letter unsigned to the contracting officer. Upon receipt of the unclaimed certified letter and the unexec u ted return receipt form, the gov ernment was on notic e t hat no authorized person had received the certified mail. In January of 2002, the contracting office r called the attorney to notify him that the letter w a s returned and asked if the attorney would accept another copy of the final

04-5152 2decision on behalf of R&E. On January 30, 2002, the contracting officer faxed the attorney a message t hat the letter had been res ent to the firm's addr ess. Less than on e year later, on J anuary 24, 2003, R&E filed suit in the Court of Federal Claims for $306,039.33 in damages resulting from the additi onal work performed on the contract. Before the Court of Federal Claim s, the government moved for summary judgment based on the stat ute of limitations time bar in the CDA that requires suit to be filed within twelve months of the contractor's actual receip t of the contracting officer' s final dec ision. 41 U. S.C. § 609(a)(3) (2000). The Court of Federal Claims found that R&E had received the final dec ision because both the fax s ent on November 27, 2001, and the certified letter sent on t he same date were deemed actually received by the
contractor. Riley & Ep hriam , 61 F ed. Cl. at 411. Becaus e R&E filed suit on J anuary 24, 2003, the Court of Federal Cla ims found that the twelve-mont h statute of limitations barred the claim and granted the government's motion for summary judgment. Id. R & E now appeals the decis ion of the Court of Feder al Claims. We have jurisdiction over an appeal from a final decision of the Court of Federal Cla ims pursuant to 28 U.S.C. § 1295 (2000). II This court reviews the grant of summary judgment de novo

. In situform Te chs., Inc. v. CAT Contracting, Inc. , 385 F.3d 1360, 1377 (Fed. Cir. 2004). Summary judgment is appropriat e when the moving party is entitled to judgment as a matter of law and no dis putes over material facts remain. Fed. Cl. R. 56(c). T he moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celote x

04-5152 3Corp. v. Catrett , 477 U.S. 317, 322-25 (1986). All just ifiable inferences should be drawn in favor of the nonmov ant. 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. Cellu lar, Inc. , ASBCA No. 52489, 00-1 BCA ¶ 30,8 32 (Mar. 2, 2000). The CDA states that: a contractor may bring an action directly on the claim in the United States Court of F ederal Claims

. . . . [This] action

. . . shall be filed wit hin twelve months from the date of t he receipt by the c ontractor of the decis ion of the contracting officer concerning t he claim, and shall proceed de novo in accordanc e 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 dec isio n to the contractor." § 605(a) . The implementing regulations further require that the decision is to be provided to t he contractor via "certifie d ma il, 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 interpr e ted rece ipt by the contractor to mean " a ctual physical receipt of that decision by the cont ractor [or his representative]." Borough of Alpine v. United States , 923 F.2d 170, 172 ( F ed. Cir. 1991) (quoting Pathman Constr. v. United Stat es , 817 F.2d 1573, 1577 (Fed. Cir. 1987)). "[ O]bjective indic i a of receipt by the contractor" must be shown to establish the date of proper deliver y 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 re ceipt by the contractor, the CDA eliminates disputes about the time of ac tual notic e, fault and m i saddressi ng a letter, or the internal mail procedures of va rious contractors." Id. at 172.

04-5152 4In this case, the government has failed to produce the "evidence of receipt" by the contractor that i s required by the CDA implementing regulat ions. The fax of November 27, 2001, and the letter received at the Stone Mountain Pos t Office on November 30, 2001, will be addr essed 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 Rain bow II , 334 F.3d 439, 444 (5th Cir. 2003), we need not address whether a confirmation sheet is "evidence of rece ipt" under the CDA because the government cannot produce a fax confirmation sheet fo r the November 27, 2001, fax to R&E' s attorney. The gov ernment produced in stead a fax cov e r sheet, phone record s indic a ting a 2.6-minute call to t he firm fax line and a statement fr om the contracting officer that the machine indic a ted electroni cally that the transmission was a success. The Court of Federal Claims found that "the evidenc e is overwhelming-and undisputedthat a fax was sent and receiv ed in [the] law office on that day." Riley & Ephriam , 61 Fed. Cl. at 409. We disagree. R&E's attorney disput es receipt of the fa x. The firm also contends that the fax number was changed when t he firm relocated. Moreover, we cannot infer receipt from evidenc e of transmission. Proof of mess age exit from a transmitting machine cannot serve as a proxy for proof of actual receip t 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 b egi n the limitations period. Th e fax cov e r s heet is only evidence that the fax was prepared. The phone records and

04-5152 5contracting officer's statement indicate a fax was transmitted but do not evidence receipt of the fax by the cont ractor's attorney. The Boards of Contract Appeal have similarly found that a fax transmission s heet is ins u ffi cient to show rec e ipt by the contractor stating "[w]e have held that a 'successful' transmission report for a fax transmission wa s not reliable evidence of receipt of the fi nal decision where the Government did not otherwise confirm receipt." Pu b. Serv. Cellu lar, Inc. , ASBCA No. 52,489 , 00-1 BCA ¶ 30,832. Fax receipt was us ually confir med in these cases by calling t he intended recipient of the decision. See, e.g. , Tyger Constr. Co. , ASBCA Nos. 36,100, 36,101, 88-3 BCA ¶ 21,149 ( A ug. 25, 1988). The Boards of Cont ract Appeal have als o been reluctant to "make the quantum leap and in fer from the Government's transmission report's statement 'Transmission OK' that the final decision was received by [the contractor]." Pub. Ser v

. , ASBCA No. 52,489. We correspondin g l y find that receipt by the contractor cannot be inferred from the contrac t ing officer's statement that the machine indicated a successful transmission. In essence, the government has not offered any evidence that the fax was act ually received by the contractor's attorney. Therefore the Court of Feder al Claims erroneous ly measured the statut e of limitations from the date of the fa x transmission. We note the sound judgment reflected in the decisions of the Boards of Contract Appeal that have recognized the ease and simplicity with whic h the government can gain confidence that a fax tr ans mission has been act u ally received by the contractor. All the gov e rnment has to do is make a s i mp le telephone c a ll to t he 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 regul ation requires it to have.

04-5152 6Indeed, the regulation' s preferre d method of transmission by ce rtified mail return receipt has the built-in c onfirmation of receipt t hat a s i mple telephone call after a fax transmission would supply. B In the alternative, the Court of Federal Claims traced the star t of the statute of limitations to the date the certified letter was receiv ed at the Stone Mountain Post Office. The government contends that R&E rece ived the certified letter on the date tha t it was processed at the postal facility and a notice that the letter could be p i cked up at the counter was placed in R&E's P.O. bo x

. The government asserts th at "receipt occurred when the package verifiably arrived at the address R&E had chose n and was being held for their acceptanc e." As with the fax transmi ssion, we hold that the government has not shown objec tive indic i a of receipt o f the cer t ified 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 certif ied mail receipt, Post Office fo rm 3811, the Domestic Return Rec e ipt, specifically requ ires the receiving party to print its name, sign the form upon receipt, and note the dat e of delivery. In this case, the Post Office did not complete any portion of the certi f ied mail re ceipt nor was the letter ever released from the custody of postal employees. Instead, t he Post Office retu rned the entire letter to the contractor marked as undeliv erable, unaccept ed and unsigned by R&E, on December 29, 2001. Nonetheles s , the Court of Federal Claims fo und that "[p]laintiff's officers implicitly consented to allow Post Offic e employee s to handle and accept mail on behalf of

04-5152 7Plaintiff." Riley & Ep hriam , 61 Fed. Cl. at 410. Although the F ederal Circ u it has held that receipt by a contractor includes rece ipt by the contractor's representative, see Borough of Alpine , 923 F.2d at 172-73, there is no evidenc e that R&E c onsented 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 th is type was at issue in Policy Analysi s Co. v. United States , 50 Fed. Cl. 626, 628 ( 2001). In Policy An alysis , the boxholder had an explicit contract with the commercial mail bo x comp any that stated: "[a]gent will p l ac e mail receiv ed on behalf of renter in the box each week day 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 certi f ied letter at issue in the case and returned the receipt to the sender. In essence, the renter of the box deputized the cl erk at the commercial mail center to receive mail on its behalf. Ther e is no such relationship here between the Post Office and R&E. R&E's box was simply real estate—a place for it s 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 Mountai n Post Office. The Post Office was not an "agent" for R& E, R&E never aut horized the Post Office to sign for its mail, and further, the letter was not signed on t he return receipt by a postal employee t o indic a te acceptance. The letter was simp ly returned undeliv ered to the contracting

04-5152 8officer. Therefore, we fi nd that the government has not shown objective evidenc e of receipt by the contractor of the No vember 27, 2001, certified letter. IV Neither the fax com m unication nor the certified le tter was received b y the contractor as required under the CDA in order to begin the statute of limitations period. It is undisputed that R&E did rec e ive the final dec ision of the contra cting offic e r through its attorney on Januar y 30, 2002, when the return of the un deliv ered certified letter put the government on notice that it s first deliv ery attempt had legally failed and prompted the government to make a lawf ul delivery of the contracting officer's final decis ion. Because s u it was filed on January 24, 2003, t he Cour t of Federal Claims er red when it granted summary judgment in favor of the government bas ed on the erroneous finding that R&E's claims were unt imely filed. Accordingly, we rev e rse and remand for adjudication on the merits.

REV E RS E AND REMAND

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