tracted delay which allegedly affected the contractor's operations adversely and concerning which the Government offered no explanation, even though it apparently had access to more detailed information than did the appellant. In Helmick the Board found the circumstances were such that the contractor should be awarded additional compensation. In the instant case we found the Government was responsible for an indeterminate portion of the unexplained delay and therefore concluded that no liquidated damages should be assessed for the delayed performance.

2. The statement by Government counsel in his brief indicating that a question existed as to whether the Government or the telephone company was responsible for the delay in approval of the necessary paperwork for removal of the poles should not have been relied upon by the Board since the statement was not evidentiary and was made arguendo.

We readily acknowledge that the statement made by Government counsel (note 71) was not evidentiary and was made arguendo. The statement is considered to be a fairer appraisal of the evidence of record, however, than the suggestions now made that possibly the telephone company would not remove their lines until the power company had approved the paper work or possibly the Mississippi Highway Department, a conduit. between the Government and the

utilities, could have delayed the

17

paper work. We note that these belated suggestions are not accompanied by any citation to the transcript or to the exhibits in evidence. They have no probative effect.

3. The appellant has not proved by a preponderance of the evidence that the utility company was held up in any way by the Government's failure to make payment and there is no support for such a finding in the Board's decision.

Contrary to Government counsel's assertion, the Board made no finding to the effect that the utility company was held up by the Government's failure to make payment. As the opinion clearly indicates at footnote 137 and the accompanying text, the Board attached little weight to Rushing's testimony indicating that the telephone company's insistence upon payment prior to removing the poles may

have been the source of the diffi

culty. The inference drawn by the Board adverse to the Government was based upon the entry recorded in Rushing's diary on April 17, 1964 (note 51), which was proffered in evidence by the Government as its Exhibit "O" (Tr. 794), together with Rushing's testimony that the grading subcontractor looked to the Government for relief (Tr. 852) and the Government's failure to offer any explanation in this context for the protracted delay in removing the poles from the area to be graded, even though it appears to be undisputed

17 Government Motion, pp. 5, 6.

that the Government had greater knowledge of the reason for the delay than did the appellant (note 71).

4. The Board's reliance upon Tobe Deutschmann Laboratories, NASA BCA No. 73 (February 25, 1966), 66-1 BCA par. 5413, is misplaced because the decision in that case was based upon a finding that by a preponderance of the evidence the Government had been shown to have been partially at fault for the delay involved.

Tobe Deutschmann and Wharton-Green were cited in note 157 of the principal opinion for the proposition that there can be no recovery against the contractor where the delay caused by the Government is inseparable from that caused by the appellant. Prior to the reference to these cases, the Board had outlined the circumstances which had caused

it to conclude by way of an inference that the Government was responsible for a portion of the delay in securing the timely removal of the utility poles.18

5. The Government was entitled to assume that since no evidence was submitted proving Government fault, no issue was presented at the hearing which it was required to refute.

Government counsel appears to have overlooked the allegations con

18 See discussion in principal opinion, note 16, supra, and the previous discussion in the text accompanying footnotes 51 and 71 as well as the footnotes themselves. Authorities for resort to an inference in a board decision were not given in the original opinion but are cited herein in note 15, supra.

tained in appellant's complaint,19 the assessment offered by appellant's counsel in his opening statement,20 the testimony offered by appellant's witness Rushing that he looked to the Government to remedy the situation,21 in conjunction with the entry in his diary on April 17, 1964,22 and the absence of testimony from Government witnesses to explain the protracted delay in removing the poles which Rushing testified adversely affected the grading subcontractor's operations,23 concerning which the Government had access to greater information than did the appellant (note 71). Lastly, we note that while Government counsel now asserts that "no issue was presented at the hearing *** which the Government was required to refute," 24 he nevertheless addressed this very question in his post hearing brief (note 71) 25

6. In view of Mr. Rushing's repeated admission that representatives of the National Park Service and the Bureau of Public Roads and everyone in the Government involved were diligent and made every effort to get the power poles removed, it was reasonable to assume that the Government was not responsible for the delays in removing the poles.

Mr. Rushing's admission 26 must necessarily be limited by the extent of his knowledge as disclosed by the evidence of record. Since it is clear from Rushing's testimony that he did not know who had responsibility for taking the required action,27 there was no warrant for the Board to regard his testimony as absolving all Government personnel from responsibility for delays associated with removing the poles.

7. The Board's finding that the Government was responsible for an

(Continued)

sary for some theory of his case. Mr. Chamberlain of the National Park Service and the District Engineer had been identified by Mr. Rushing as being involved, and Appellant was free to request their presence. * * *" While these statements are true, they ignore the fact that inferences are resorted to only where the record as made is in some respects unsatisfactory. See, note 15, supra and the portion of the Helmick opinion quoted in the text. We have previously noted that the proj ect personnel seemed not to have complete and accurate information pertaining to the utility poles (note 11, supra). We also note that Mr. Chamberlain who had told Rushing that the telephone company would not move its line until the paper work was approved (note 51 of principal opinion) was not at the hearing and consequently was not available for questioning by either counsel or by the hearing member. In his post hearing brief Department Counsel interpreted the evidence of record as raising two inferences, of which the Board has found the one adverse to the Government to be the more probable.

20 Tr. 251-52.

27 Tr. 852-36.

indeterminate portion of the delay is extremely harsh, since in a possible law suit the Court of Claims may accept the findings of the Board as conclusive relative to damages, over which the Board concedes it has no jurisdiction.

The reference to the Board's findings being "extremely harsh" overstates the case. While we would not be deterred from making a finding considered to be proper merely because it might affect the Government adversely if an action were subsequently brought in the Court of Claims,28 there is no sound reason to suppose that the questioned decision involves such a case. We note, for example, the references in the opinion to the testimony by Government witness Jordan indicating that the delay in the prosecution of the work was attributable primarily to lack of proper planning on the part of the appellant's personnel,29 as well as the other references to his testimony indicating that the delay in removing the utility poles did not significantly affect the grading subcontractor's operation in any event.3 30 We also note that the language of the opinion re

28 If such an action is brought, the appellant would be entitled to a de novo hearing If such a hearing is held, it is inconceivable that the Court would not base its decision on the evidence received where, as here, the Board's decision is based upon inference.

Notes 58 and 59 of principal opinion and accompanying text.

30 Tr. 973-74; notes 60 and 61 of principal opinion and accompanying text. Because of the basis upon which our decision respecting claims A and B was grounded, there was no need for the Board to assess the weight to be given to the testimony of Rushing and Jordan except for the finding that the circumstances created an inference adverse to the Govern

Also for consideration with respect to the question presented are the decisions by the Court of Claims denying contractor's claims for compensation

where Government

caused delays are concurrent or intertwined with other delays for which the Government is not responsible." The boards have applied the rule enunciated in such cases and in the cases to which we have previously referred" in an evenhanded manner, as is well illustrated by the recent decision in Minimar Builders, Inc., note 9, supra, in which, at 44,859, the Board stated:

* It is hard to determine how much delays was precisely attributable to either party. On balance both parties bear a share of the responsibility. When delays result from a combination of causes, and both parties are at fault to such extent that it is not possible to determine the degree of guilt of each, the Government will lose its right to assess liquidated damages and the contractor will lose the right to collect delay costs.

Accordingly, the Government's motion for reconsideration is denied.

WILLIAM F. MCGRAW,

I CONCUR:

Chairman.

SHERMAN P. KIMBALL, Member.

EASTERN ASSOCIATED COAL CORPORATION

2 IBMA 71

Decided March 27, 1973

Appeal by Eastern Associated Coal Corporation from an order of Ernest F. Hom, Chief Administrative Law Judge, dismissing as untimely filed Eastern's application for review of an order of withdrawal (Docket No. HOPE 73-449).

Remanded.

Federal Coal Mine Health and Safety Act of 1969: Review of Notices and Orders: Timeliness of Filing

The mailing of an application for review is not determinative of timely filing since receipt is the governing factor.

Federal Coal Mine Health and Safety Act of 1969: Review of Notices and Orders: Timeliness of Filing

Where the delay of receipt of a properly addressed application for review beyond the expiration of the specified filing period is caused solely by the Department's own employee, the application will not be dismissed as untimely filed.

Federal Coal Mine Health and Safety Act of 1969: Review of Notices and Orders: Timeliness of Filing

Unauthorized actions of its own employees cannot be used by the Department as the basis for defeating a substantive right of a party afforded by the Act.

APPEARANCES: Thomas E. Boettger, Esquire, for appellant, Eastern Associated Coal Corporation; Robert W.

Long, Associate Solicitor, J. Philip

Smith, Assistant Solicitor, and Madison McCulloch, Trial Attorney, for appellee, Bureau of Mines.

MEMORANDUM OPINION AND ORDER INTERIOR BOARD OF MINE OPERATIONS APPEALS

On December 3, 1972, an order of withdrawal was issued for the

Wharton No. 2 Mine operated by Eastern Associated Coal Corporation (hereinafter Eastern). Eastern's application for review pursuant to section 105 (a) (1) of the Federal Coal Mine Health and Safety

Act of 1969 was properly addressed to the Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, Virginia 22203, in accordance with 43 CFR 4.508 (a), on January 5, 1973. The return receipt indicates that the letter was delivered on January 8, 1973, to the mailroom of the Bureau of Mines (hereinafter Bureau) rather than that of the Office of Hearings and Appeals. Both offices are part of the Department of the Interior and are located in the same building. Jane A. Carrico, an employee of the Bu

reau, was in the mailroom that morning to pick up mail for her office. She inadvertently signed for Eastern's application for review along with mail addressed to the Bureau. Consequently, the application was delayed and not received in the Docket Office of the Hearings. Division until delivered by messenger the next day, one day after the expiration of the thirty days allowed for filing an application for review.

The decision of the Chief Administrative Law Judge was based on the wording of the following departmental regulation 43 CFR 4.22 :

*** A document is filed in the Office where the filing is required only when the document is received in that office during the office hours when filing is permitted and the document is received by a person authorized to receive it.

The Judge also cited the Board's decisions in Freeman Coal Mining Corporation, 1 IBMA 1, 77 I.D. 149 (1970), and Consolidation Coat Company, Inc., 1 IBMA 131, 79 I.D. 413 (1972), which held that the

thirty-day limit for filing an application for review is jurisdictional. Since Mrs. Carrico was not a person officially authorized to receive such applications and the application was not received by the Office of Hearings and Appeals until January 9, 1973, the Judge reasoned that he could not accept it.

Eastern's brief urges (1) that timely posting of a properly addressed application constitutes filing, and (2) that under the facts of this case Eastern's application was