The Borough of Alpine v. The United States, 923 F.2d 170 (Fed. Cir. 1991). · Go Syfert
The Borough of Alpine v. The United States, 923 F.2d 170 (Fed. Cir. 1991). Cases Citing This Book View Copy Cite
67 citation events (55 in the last 25 years) across 7 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
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At page 172 Determining the date of receipt under 41 U.S.C. § 609(a)(3)22 citing cases“actual physical receipt of that decision by the contractor.”2 citing courts quote it
  • Logistics & Rental Car SARL, No. 63950 (A.S.B.C.A. Apr. 9, 2025).published
    Cir. 2005) (citing Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.
  • The Sithe Grp., LLC, dba TSG Indus., No. 63605 (A.S.B.C.A. Apr. 3, 2024).published
    Cir. 2005) (citing Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.
  • MVP Network Consulting, LLC, No. 63466 (A.S.B.C.A. Aug. 30, 2023).published
    Cir. 2005) (citing Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.
  • Sandstone Assocs., Inc v. United States, No. 19-900 (Fed. Cl. Dec. 12, 2019).published 2 cites
    Accordingly, the Court must focus its “inquiry on the date of receipt by the contractor, not the date of actual notice to the contractor.” Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991).
  • Rohulhameed Constr. Co., ASBCA No. 61359 (A.S.B.C.A. Apr. 4, 2019).published
    Receipt of a CO's decision means the "actual physical receipt of that decision by the contractor." Borough ofAlpine v. United States, 923 F.2d 170, 172 (Fed.
  • Phoenix Hawk Constr. Co., ASBCA No. 60987 (A.S.B.C.A. Feb. 1, 2019).published
    "The Federal Circuit has interpreted receipt by the contractor to mean 'actual physical receipt of that decision by the contractor [or his representative.]'" Riley & Ephriam, 408 F.3d at 1372 (quoting Borough ofAlpine v. United States, 923…
  • Uniglobe Gen. Trading & Contracting Co., Wll v. United States, 115 Fed. Cl. 494 (Fed. Cl. 2014).published
    E.g., Int’l Air Response v. United States, 302 F.3d 1363 , 1366 n. 2 (Fed.Cir.2002) (“The one-year period within which to challenge a contracting officer’s final decision in the Court of Federal Claims begins to run from the ‘date of the r…
  • Nwogu v. United States, 94 Fed. Cl. 637 (Fed. Cl. 2010).published
    Prior to Arctic Slope, addressing 41 U.S.C. § 609 (3), the Federal Circuit in Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991), stated, “Congress has set the twelvemonths limit, and this court cannot and should not read…
  • Quillen v. United States, 89 Fed. Cl. 148 (Fed. Cl. 2009).published
    In order to establish the date of receipt, the CO must present “[objective indicia of receipt by the contractor.” Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
  • Brickwood Contractors, Inc. v. United States, 77 Fed. Cl. 624 (Fed. Cl. 2007).published
    Receipt by the contractor means “actual physical receipt of that decision by the contractor.” Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991) (quoting Pathman Constr.
Show 12 more citing cases
  • Pueblo of Zuni v. United States, 467 F. Supp. 2d 1099 (D.N.M. 2006).published 2 cites
    (refusing to read into CDA exceptions to time limits and tolling provisions not authorized by Congress)
  • Renda Marine, Inc. v. United States, 71 Fed. Cl. 782 (Fed. Cl. 2006).published
    Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
  • Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369 (Fed. Cir. 2005).published 2 cites
    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 Pathm…
  • Zoeller v. United States, 65 Fed. Cl. 449 (Fed. Cl. 2005).published
    See 41 U.S.C. § 609 (a)(3); Borough of Alpine v. United States, 923 F.2d 170,172 (Fed.Cir.1991).
  • Riley & Ephriam Constr. Co. v. United States, 61 Fed. Cl. 405 (Fed. Cl. 2004).published 2 cites
    However, the Federal Circuit has held that “[b]y linking the limitations period to receipt by the contractor, the CDA eliminates disputes about ... the internal mail procedures of various contractors.” Borough of Alpine v. United States, 9…
  • United Partition Sys., Inc. v. United States, 59 Fed. Cl. 627 (Fed. Cl. 2004).published
    ([T]he Claims Court must focus its inquiry on the date of receipt by the contractor, not the date of actual notice to the contractor.)
  • Hamza v. United States, 36 Fed. Cl. 10 (Fed. Cl. 1996).published
    Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991), aff'g 19 Cl.Ct. 802 (1990).
  • Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961 (Fed. Cir. 1993).published 2 cites
    In Borough of Alpine v. U.S., 923 F.2d 170, 172 (Fed.Cir.1991), the question was whether receipt by an employee of the contractor, in the circumstances of that case, constituted receipt by the contractor to start the twelve-month limitatio…
  • Sun Eagle Corp. v. United States, 23 Cl. Ct. 465 (Ct. Cl. 1991).published
    If this December 28 letter acts as an operative final decision, then this court lacks jurisdiction because plaintiff filed suit more than one year thereafter. 41 U.S.C. § 609 (a)(3); Borough of Alpine v. United States, 923 F.2d 170, 172 (F…
  • Rollock Co. v. United States, 115 Fed. Cl. 317 (Fed. Cl. 2014).published
    See Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
  • Spodek v. United States, 51 Fed. Cl. 221 (Fed. Cl. 2001).published
    See Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
  • Educators Assocs., Inc. v. United States, 41 Fed. Cl. 811 (Fed. Cl. 1998).published
    See Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
At page 171 Retrieval of mail by employee versus plaintiff3 citing casesinvolving retrieval of mail by employee of plaintiff rather than plaintiff itself1 citing court put it this way
  • Sandstone Assocs., Inc v. United States, No. 19-900 (Fed. Cl. Dec. 12, 2019).published 2 cites
    Accordingly, the Court must focus its “inquiry on the date of receipt by the contractor, not the date of actual notice to the contractor.” Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991).
  • Kanag'Iq Constr. Co. v. United States, 51 Fed. Cl. 38 (Fed. Cl. 2001).published
    Borough of Alpine v. United States, 923 F.2d 170, 171-72 (Fed.Cir.1991); see also Policy Analysis Co. v. United States, 50 Fed.Cl. 626, 627 , 2001 U.S. Claims LEXIS 182, at *1 (2001).
  • Policy Analysis Co. v. United States, 50 Fed. Cl. 626 (Fed. Cl. 2001).published
    Borough of Alpine v. United States, 923 F.2d 170, 171-72 (Fed.Cir.1991); see also Ariadne Fin.
At page 173 mean receipt by the contractor's authorized representatives. The mayor, like the clerk, had authority to receive notice for Alpine. Mayor Hertzberg signed the…1 citing caseopening of page *173 (no citing court says what it cites this page for)
Other citing cases6 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
The BOROUGH OF ALPINE, Plaintiff-Appellant,
v.
the UNITED STATES, Defendant-Appellee
90-5103.
Court of Appeals for the Federal Circuit.
Jan 11, 1991.
Published opinion
923 F.2d 170
1991 U.S. App. LEXIS 272
1991 WL 1984
James P. Logan, Logan & Logan, P.C., Englewood, N.J., argued for plaintiff-appellant., Scott E. Ray, Commercial Litigation Branch, Dept, of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Stuart E. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Stephen J. McHale, Asst. Director. Also on the brief was Richard C. Jensen, Supervisory Atty., U.S. Postal Service, Washington, D.C., of counsel.
Newman, Archer, Rader.
Cited by 39 opinions  |  Published
RADER, Circuit Judge.

The Borough of Alpine (Alpine or Borough) filed a claim after expiration of the twelve-month deadline for filing appeals under the Contract Disputes Act, 41 U.S.C. § 609(a)(3) (1982) (CDA). The United States Claims Court dismissed. [1] Borough of Alpine v. United States, 19 Cl.Ct. 802 (1990). Alpine appeals. This court affirms.

BACKGROUND

In 1981, the United States Postal Service (USPS) and Alpine, a New Jersey municipal corporation, agreed to split the costs of building a new post office. Under the agreement, USPS agreed to pay a portion of the construction costs and to lease space in the building from Alpine. The Mayor of Alpine, Mr. Howard Hertzberg, signed the lease agreement for the Borough. After completion of the project, a dispute arose over payment for the costs of additional construction.

On August 2, 1988, Alpine filed a claim with the contracting officer for the USPS, requesting $28,800.00 for the extra construction. The contracting officer, in a written decision dated September 28, 1988, denied Alpine’s claim. The contracting officer mailed the decision to the Borough, addressing the letter:

Mayor Howard Hertzb[e]rg
Borough of Alpine
Municipal Building
Alpine, N.J. 07620-9998.

The USPS Express Mail return receipt showed receipt of the decision letter on September 30, 1988. The Borough Clerk, Ms. Joyce Hubschman, signed the return receipt on that date. Ms. Hubschman forwarded the letter unopened to Mayor Hertzberg.

At Alpine’s monthly council meeting in late October, the mayor realized that the Borough council had not received the decision letter. The mayor delivered the letter to Ms. Hubschman on November 4, 1988, for distribution to the rest of the Borough council.

Alpine filed a complaint in the Claims Court on October 31, 1989. This filing date is within the twelve-month time limit if the date of receipt was November 4, 1988, but outside the limit if the receipt date was September 30, 1988. The Government moved to dismiss for “lack of jurisdiction” when it should have moved to dismiss for[*172] failure to state a claim on which relief may be granted. The Claims Court granted the motion to dismiss and denied Alpine’s motion for reconsideration.

DISCUSSION

Title 41 U.S.C. § 609(a)(3) states that actions brought in the United States Claims Court:

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.

(Emphasis added.) Alpine argues that because the contracting officer addressed the decision letter to the mayor, the contractor did not receive the September 28 document until November 4.

The CDA authorizes the Claims Court to entertain claims filed “within twelve months from the date of the receipt by the contractor.” This language means the “actual physical receipt of that decision by the contractor.” Pathman Constr. Co. v. United States, 817 F.2d 1573, 1577 (Fed.Cir.1987). Receipt is the “critical event that starts the running of the limitations period.” Id. Section 609(a)(3) defines timely claims in terms of the receipt date, not the date of actual notice of the contractor’s decision. Therefore, the Claims Court must focus its inquiry on the date of receipt by the contractor, not the date of actual notice to the contractor.

This court’s predecessor, the Court of Claims, stated concerning 41 U.S.C. § 609(a)(3):

Congress has set the twelve-months limit, and this court cannot and should not read into it exceptions and tolling provisions Congress did not contemplate or authorize.

Gregory Lumber Co. v. United States, 229 Ct.Cl. 762, 763 (1982) (citation omitted). The language of the CDA sets a clear and unambiguous standard. By linking the limitations period to receipt by the contractor, the CDA eliminates disputes about the time of actual notice, fault in misaddressing a letter, or the internal mail procedures of various contractors. To determine compliance with § 609(a)(3), the Claims Court need only check the objective indicia of receipt by the contractor.

Alpine received the decision letter on September 30, 1988. The Borough Clerk, Ms. Hubschman, signed the return receipt on that date thus effecting receipt for the Borough. Ms. Hubschman in her capacity as clerk had authority to receive mail for Alpine. Ms. Hubschman’s receipt of the decision letter on September 30,1988 started the running of the limitations period. The Claims Court correctly calculated the timeliness of Alpine’s filing from that date.

Alpine argues that Ms. Hubschman’s receipt on September 30 was not “receipt by the contractor.” On September 30, according to Alpine, Ms. Hubschman received the letter for the mayor, not for Alpine. Due to the mayor’s name in the address and the Borough’s internal procedures, the clerk forwarded the letter on September 30 to Mayor Hertzberg. Five weeks lapsed before Mayor Hertzberg returned the letter to Clerk Hubschman for distribution to the rest of the council. Not until November 4, Alpine contends, did Ms. Hubschman receive the letter for the contractor.

Alpine confuses receipt and notice. The statute requires only the former. Ms. Hubschman’s act of signing the return receipt for the letter was a receipt by the Borough. Ms. Hubschman was acting within the scope of her authority in signing for the envelope and thus, as an authorized representative of Alpine, she received the contracting officer’s decision on the contractor’s behalf. To accept Alpine’s argument would be to examine the issue of notice of the envelope’s contents. Section 609(a)(3) deals solely with the issue of receipt, not notice.

Mayor Hertzberg on September 30 also received the letter for the contractor within the terms of the CDA. As a legal entity, the municipal corporation of the Borough of Alpine can only act through its officers and agents. Thus, when a contractor is a legal entity, “receipt by a contractor” must[*173] mean receipt by the contractor's authorized representatives. The mayor, like the clerk, had authority to receive notice for Alpine.

Mayor Hertzberg signed the USPS contract for the Borough, signed the lease for the Borough, and represented the corporation in its dealings under those agreements. Receipt by the mayor of the contracting officer’s decision which interprets those agreements was receipt by an authorized representative of the contractor. Thus, receipt by the mayor on September 30 also satisfied the terms of the CDA.

This reading of the CDA is consistent with Gragg v. United States, 717 F.2d 1343 (Fed.Cir.1983), wherein this court held that service upon an employee’s designated union representative operated to start the running of the thirty-day filing limit in 5 U.S.C. § 7703(b)(1) (1990). [2] The petitioner in Gragg argued that to allow a representative to receive notice for the petitioner would contravene the plain language of the statute which refers to the date the petitioner received notice. The court responded:

[Sjervice upon a litigant’s ‘agent authorized by appointment or by law to receive service of process’ generally constitutes service upon a litigant that is legally equivalent to service upon the litigant himself. Fed.R.Civ.P. 4(d)(1).

Gragg, 717 F.2d at 1345.

This court will not read 41 U.S.C. § 609(a)(3) to exclude authorized representatives of a corporate contractor from the terms of the statute. Mayor Hertzberg was an authorized representative of the Borough by virtue of his status as mayor and his extensive dealings on this contract on behalf of Alpine. Ms. Hubschman was also such a representative.

CONCLUSION

The Claims Court correctly determined Alpine received the contracting officer’s decision on September 30, 1988. Alpine did not file its claim “within twelve months from [that] date.” 41 U.S.C. § 609(a)(3). Therefore, the Claims Court lacked the power to entertain Alpine’s untimely claims. The decision of the Claims Court is

AFFIRMED.

1

. The United States Claims Court purported to dismiss the case for lack of subject matter jurisdiction. The Claims Court has and will continue to have jurisdiction over the subject matter of Contract Disputes Act cases. However, in this case, because of its failure to file a timely appeal, Alpine was not entitled to have the Claims Court exercise its subject matter jurisdiction.

2

. Section 7703(b)(1) of Title 5 uses the language "within 30 days after the date the petitioner received notice of the final order” instead of the stricter "receipt by the contractor” standard in 41 U.S.C. § 609(a)(3).