U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Chicago District and National Treasury Employees Union, Chapter 10 (Authority decision, March 23, 1992)

FLRA representation decision. The Authority denies reconsideration of its order dismissing an application for review in a representation case. Judicial review under 5 U.S.C. § 7123(a)(2) excludes orders involving appropriate-unit determinations under 5 U.S.C. § 7112. This procedural representation order is not presented as beginning a judicial-review filing period.

Plain-English summary

The IRS asked the Authority to reconsider its dismissal of an application for review of a regional director's order. The earlier application was late because the mailing envelope lacked a postmark and the filing rule treated it as mailed five days before receipt. The IRS argued that its certified mail receipt and affidavits proved an earlier mailing date. The Authority denied reconsideration, explaining that the five-day rule was not rebuttable without a postmark and that the filing deadline could not be extended or waived. It found no extraordinary circumstances justifying reconsideration.

Decision snapshot

• Authority: Reconsideration and filing-date rules under 5 C.F.R. §§ 2429.17 and 2429.21(b).
• Outcome: Motion for reconsideration denied; dismissal of the application for review stands.
• Key point: A certified mail receipt without a postmark did not establish a timely filing date under the applicable rule.

Full text (FLRA public release)

[ v44 p538 ]
44:0538(43)CU

The decision of the Authority follows:

44 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

AND

INTERNAL REVENUE SERVICE

CHICAGO DISTRICT

CHICAGO, ILLINOIS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 10

(Labor Organization/Petitioner)

5-CU-00016

(43 FLRA 827 (1991))

ORDER DENYING MOTION FOR RECONSIDERATION

March 23, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's Order in U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago District, Chicago, Illinois, 43 FLRA 827 (1991). The Agency is seeking reconsideration of the Authority's Order dismissing the Agency's application for review of the Regional Director's Decision and Order. The Union did not file an opposition to the Agency's motion. Because the Agency fails to establish that extraordinary circumstances exist that would warrant reconsideration of our decision, we will deny the motion.

II. The Order in 43 FLRA 827

In 43 FLRA 827, we concluded that the Agency's application for review, which was received by the Authority on December 2, 1991, was untimely filed. We noted that under the Authority's Rules and Regulations the application had to be filed with the Authority no later than November 25, 1991, to be timely filed. Because the application was mailed in an envelope without a postmark, under section 2429.21(b) of the Authority's Rules and Regulations the application was presumed to have been mailed 5 days prior to receipt, or on November 27, 1991. Although a return post office receipt may establish the date of filing in the absence of a postmarked envelope, we concluded that the Agency's submission of a certified mail receipt dated by the Agency on November 25, 1991, supported by affidavits that the Agency had delivered the certified mail to a local post office on November 25, 1991, did not constitute such proof.

III. Motion for Reconsideration

The Agency contends that extraordinary circumstances exist to merit reconsideration of 43 FLRA 827, based on the Agency's claim that it will suffer "severe prejudice" from the dismissal of its application. Motion for Reconsideration at 2. The Agency argues that the Authority applied the wrong section of its Rules and Regulations. The Agency also argues that none of the cases cited by the Authority in 43 FLRA 827 requires that an agency must have a postmarked certified mail receipt to prove timely filing. The Agency contends that it has submitted a certified mail receipt that was prepared in accordance with the directions on the receipt, which provides a line for "postmark or date." Id. at 4. Finally, the Agency argues that it is "unrealistic" to expect the Agency, which uses Government envelopes that do not require a postmark and which enters "voluminous amounts of mail" into the postal system, to provide a postmark to prove the date of mailing. Id. at 6. Rather, it requests that it be permitted to present such proof in a "manner that is within the norm of government operation." Id.

IV. Analysis and Conclusions

We conclude that the Agency has failed to establish extraordinary circumstances within the meaning of section 2429.17 of the Authority's Rules and Regulations to warrant reconsideration of the Order in 43 FLRA 827.

In Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987), the Authority interpreted section 2429.21(b) of the Authority's Rules and Regulations to require the determination of filing dates by either an examination of the postmark date or, in the absence of a postmark, by subtracting 5 days from the date of receipt. We stated unequivocally that section 2429.21(b) "does not state a rebuttable presumption." Id. at 53. In that case we suggested that even though filings are often mailed to the Authority in envelopes that are not postmarked, an agency may request that a specific mailing be postmarked or, in the alternative, can obtain a postmarked certified mail receipt. Id. at n.
/. See also U.S. Department of the Navy, Naval Air Station, Corpus Christi, Texas and National Federation of Federal Employees (Local 797), 35 FLRA 1161, 1162 n. / (1990).

It is clear, contrary to the Agency's contention, that only a postmark date will rebut the presumption that a filing was mailed 5 days prior to its receipt by the Authority. As the Agency has not presented valid proof that its application for review was timely filed and as the time limit for filing an application for review may not be extended or waived by the Authority, the Order in 43 FLRA 827 was appropriate. Accordingly, the Agency has not established extraordinary circumstances requiring reconsideration of that Order.

V. Order

The Agency's motion for reconsideration of the Authority's Order in 43 FLRA 827 is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)