D.E. and U.S. Postal Service, Post Office, Battle Creek, MI (Board decision, June 16, 2021)

ECAB final decision. The Board dismissed the appeal as untimely. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.E. appealed OWCP’s July 27, 2020 decision on February 22, 2021, after the 180 day deadline. Counsel identified only that decision in the appeal form, although OWCP had issued a later hearing decision. The Board dismissed the appeal of the July decision without reaching its merits.

Decision snapshot

• Authority: 20 C.F.R. § 501.3(e).
• Outcome: Appeal of July 27, 2020 decision dismissed as untimely.
• Key point: The appeal was filed after the 180 day period for the decision identified.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.E., Appellant
)
)
and ) Docket No. 21-0531
) Issued: June 16, 2021
U.S. POSTAL SERVICE, POST OFFICE,
)
Battle Creek, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER DISMISSING APPEAL

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 22, 2021 appellant, through counsel, filed an appeal from a July 27, 2020 decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the Appellate Boards assigned Docket No. 21-0531.

The Board has duly considered the matter and notes that the Board has jurisdiction to review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 Counsel did not appeal from OWCP’s February 3, 2021 hearing decision, which affirmed OWCP’s July 27, 2020 decision. He identified only the July 27, 2020 on the application for review (Form AB-1). Therefore, the Board will not consider the February 3, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3; see also L.J., Docket No. 19-0211 (issued July 10, 2019). Appellant has 180 days from the date of that decision to file an appeal with the Board. Id. 3 5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s decision.4

The 180th day following the July 27, 2020 decision was January 23, 2021. As appellant did not file an appeal with the Board until February 22, 2021, more than 180 days after the July 27, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0531 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to explain the failure to timely file an appeal with supporting documentation sufficient to establish compelling circumstances.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”5

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0531 is dismissed.

Issued: June 16, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees' Compensation Appeals Board

4
Id. at § 501.3(e).
5
Id. at § 501.6(d). Appellant may file a petition for reconsideration of this order prior to the expiration of the 30 days. See id. at 501.7(a).

2