Department of Veterans Affairs, John J. Pershing Medical Center, Poplar Bluff, Missouri and American Federation of Government Employees, Local 2338 (Authority decision, July 31, 1992)

Final FLRA representation decision. The Authority dismisses the medical center's application for review as untimely. This ends the application before the Authority and leaves the acting regional director's decision and order in place. The published text does not describe the regional ruling's substance, so this banner does not characterize the underlying representation question or state a judicial-review period.

Plain-English summary

The VA's John J. Pershing Medical Center sought Authority review of an acting regional director's decision in a representation case involving AFGE Local 2338. The regional decision was dated April 30, 1992, making June 29 the deadline for applying for review. The VA's application was dated June 30 and arrived on July 7 in an envelope without a postmark; under the filing rule, the Authority presumed a July 2 mailing date. The VA pointed to an incorrect June 30 deadline in the regional decision and other claimed equitable reasons. The Authority held that it could not extend or waive the regulatory deadline and dismissed the application.

Decision snapshot

• Authority: 5 C.F.R. §§ 2422.17(a), 2429.21(b), and 2429.23(d).
• Outcome: Application for review dismissed as untimely; regional decision remains in place.
• Key point: An incorrect filing date stated in a regional order did not extend the Authority's fixed application deadline.

Full text (FLRA public release)

[ v45 p791 ]

45:0791(69)RO

The decision of the Authority follows:

45 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF VETERANS AFFAIRS

JOHN J. PERSHING MEDICAL CENTER

POPLAR BLUFF, MISSOURI

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2338

(Union/Petitioner)

DE-RO-20007

ORDER DISMISSING APPLICATION FOR REVIEW

July 31, 1992

The Activity has filed an application for review of the Acting Regional Director's Decision and Order in the above-captioned case. On July 13, 1992, the Authority issued an Order directing the Activity to show cause why its application should not be dismissed as untimely filed. The Activity filed a timely response to the Authority's Order. For the reasons set out below, the Activity's application is untimely and must be dismissed.

The Authority's Regulations provide that "[a] party may file an application for review of the Regional Director's Decision and Order with the Authority within sixty (60) days of the date of such action." 5 C.F.R. 2422.17(a). The 60-day time limit for filing an application for review "may not be extended or waived." 5 C.F.R. § 2429.23(d).

The Acting Regional Director's Decision and Order in this case is dated April 30, 1992. Any application for review of the Decision and Order had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than June 29, 1992, in order to be considered timely.

The Activity's application for review, dated June 30, 1992, was mailed in an envelope without a postmark (postage was paid by the Department of Veterans Affairs as shown by a "penalty mail" envelope). The Authority received the Activity's application for review on July 7, 1992. Under Section 2429.21(b) of the Authority's Regulations, if no postmark is evident, a filing is presumed to have been mailed 5 days prior to receipt. 5 C.F.R. § 2429.21(b). Therefore, the filing date for the Activity's application is presumed to be July 2, l992. See Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).

The Activity argues that the Authority should apply the following equitable considerations to find that its application was timely filed: (1) the Activity's reliance on the Acting Regional Director's decision which established June 30, 1992, as the filing date for any application for review of the decision; (2) the Activity's reliance on the U.S. Postal Service to postmark the envelope containing the Activity's application as having been mailed to the Authority on June 30, 1992; and (3) "the highly unusual and extraordinary circumstances of the case-in-chief".

The Acting Regional Director's error in establishing June 30, 1992, as the filing date for any application for review of the decision does not provide a basis for finding the Activity's application for review to be timely filed. See U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 34 FLRA 307 (1990). Parties filing documents with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements. See U.S. Department of the Navy, Naval Computer and Telecommunications Command, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 1, 42 FLRA 1265 (1991). In addition, as stated above, the time limit for filing an application for review may not be extended or waived by the Authority. 5 C.F.R. §§ 2422.17(a) and 2429.23(d). Thus, even assuming, as the Activity asserts, that its application for review was filed (mailed) with the Authority on June 30, 1992, that filing cannot be considered as timely filed.

Finally, the Activity offers no explanation of what it means when it asserts that the Authority should apply the equitable consideration of "the highly unusual and extraordinary circumstances of the case-in-chief" and find that its application for review was timely filed. In its response to the Authority's July 13, 1992 Order to Show Cause, the Activity has provided no information whatsoever about the "circumstances" that it may be referring to. The Activity's bare assertion is rejected.

Therefore, as the Activity's application for review was not timely filed with the Authority within the prescribed time limit, and as the time limit for filing an application may not be extended or waived by the Authority, the Activity's application for review is dismissed.

For the Authority.

Alicia N. Columna

Director, Case Control Office

FOOTNOTES:
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have footnotes.)