Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council (Authority decision, April 9, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying a waiver of the deadline to seek reconsideration of an unfair labor practice decision. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Border Patrol's El Paso office sought reconsideration of an earlier Authority unfair labor practice ruling after the ten-day filing deadline had passed. It asked for a waiver based on a later court decision that it believed conflicted with the ruling. The Authority found no extraordinary circumstances to excuse the late filing. It denied the waiver request without considering the merits of the reconsideration motion, leaving the earlier order in place.

Decision snapshot

• Authority: Reconsideration deadline under 5 C.F.R. § 2429.17; waiver under § 2429.23(b).
• Outcome: Request to waive expired filing deadline denied; reconsideration motion not reached.
• Key point: A later court decision cited by the agency did not justify reopening an expired reconsideration deadline.

Full text (FLRA public release)

[ v44 p766 ]
44:0766(64)CA

The decision of the Authority follows:

44 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE

UNITED STATES BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-80655

(43 FLRA 697 (1991))

ORDER DENYING MOTION FOR WAIVER OF EXPIRED TIME
LIMIT

TO FILE MOTION FOR RECONSIDERATION

April 9, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

This case is before the Authority on the Respondent's February 14, 1992, motion for reconsideration of the Authority's December 20, 1991, Decision and Order in Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697 (1991), petition for review filed sub nom. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas v. FLRA, No. 92-4149 (5th Cir. Feb. 13, 1992). The Respondent acknowledges that its motion is untimely and requests a waiver of the expired time limit. The General Counsel filed a response to the Respondent's motion for reconsideration.

The Respondent asserts that the Authority should waive the time limit applicable to the filing of its motion for reconsideration because the Authority's decision is inconsistent with a decision issued on January 7, 1992, in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992). The General Counsel contends that the Authority should not waive the time limit because to do so would require the Authority "to reconsider any of its previous[ly] adjudicated [d]ecisions, no matter how old, any time a moving party comes across a subsequent case decision which the party considers useful and wants to use to reargue the case . . . ." Response at 2.

Section 2429.17 of the Authority's Regulations provides that a request for reconsideration of a final decision or order of the Authority must be filed within 10 days after service of the decision or order. As acknowledged by the Respondent, its motion for reconsideration is untimely.

Section 2429.23(b) of the Authority's Regulations provides that the Authority may waive expired time limits "in extraordinary circumstances." The Respondent has not established extraordinary circumstances warranting waiver of the expired time limit. See American Federation of Government Employees, Council 236 and General Services Administration, 24 FLRA 913 (1986). Accordingly, without addressing the motion for reconsideration, the Respondent's request for waiver of the expired time limit is denied.

FOOTNOTES:
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have footnotes.)