United States Department of the Treasury, Customs Service San Diego District, San Diego, California and National Treasury Employees Union (Authority decision, December 20, 2002)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on an unfair labor practice matter under 5 U.S.C. § 7116. 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 Authority had dismissed the San Diego Customs Service's exceptions in an unfair labor practice case as late. The agency sought reconsideration, repeating its argument that the filing deadline should have been waived. The Authority found no extraordinary circumstances and denied reconsideration. It explained that commercial delivery made receipt by the Authority the filing date; a timely, legible postmark would have sufficed if the agency had mailed the exceptions.

Decision snapshot

• Authority: 5 C.F.R. §§ 2429.17 and 2429.21(b).
• Outcome: Reconsideration denied; dismissal of the late exceptions remains in effect.
• Key point: Repeating rejected deadline arguments did not justify reconsideration.

Full text (FLRA public release)

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58 FLRA No. 57

UNITED STATES

DEPARTMENT OF THETREASURY,

CUSTOMS SERVICE SAN DIEGO DISTRICT

SAN DIEGO, CALIFORNIA

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

SF-CA-01-0186

SF-CA-01-0521

_____

MOTION FOR RECONSIDERATION DENIED

December 20, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members

This matter is before the Authority on the Respondent's motion for reconsideration of the Authority's order dismissing the Respondent's exceptions as untimely. The General Counsel filed an opposition to the Respondent's motion, in which it moves to strike the exhibits that were submitted with the Respondent's motion for reconsideration.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of a final order of the Authority. See, e.g., United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority had erred in its remedial order, process, conclusion of law, or factual finding. See id. at 86-87. Extraordinary circumstances may also exist when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. See United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Nat'l Weather Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993). Mere [ v58 p241 ] disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. See AFGE Local 1156, 57 FLRA 748, 748 (2002).

The Respondent must meet a heavy burden of establishing that extraordinary circumstances exist, which justify this unusual action. See, e.g., id. at 85. The Respondent has failed to meet this burden. In this regard, the Respondent fails to argue that any of the grounds that the Authority has identified as constituting extraordinary circumstances applies, relying instead on its earlier arguments made in response to the Authority's show cause order. As the Authority has already rejected those arguments, the Respondent's motion for reconsideration is an attempt to relitigate the Authority's conclusion that there were no extraordinary circumstances warranting a waiver of the expired time limit. Consequently, the Respondent has not established any extraordinary circumstances warranting reconsideration of the Authority's order. [n1] See, e.g., AFGE Local 1156, 57 FLRA at 748; AFGE Local 2501, 57 FLRA 278, 279 (2001). We therefore deny the Respondent's motion for reconsideration. [n2]

Footnote # 1 for
58 FLRA No. 57

• Authority's Decision

We reject the Respondent's claim that this case is one "of first impression." Respondent's Motion at 3. The Authority's precedent on what constitutes extraordinary circumstances for waiving filing deadlines is well established. See, e.g., Dep't of the Army, Aberdeen Proving Ground, 34 FLRA 521 (1990) (delay caused by agency's mailing procedure does not constitute extraordinary circumstances sufficient to toll filing deadline); NTEU, 46 FLRA 696, 700-02 (1992) (no extraordinary circumstances where union claimed Authority's Regulations were ambiguous). It is also well established that the date mailed -- not the date received -- determines the timeliness of exceptions. Hence, the Respondent was required only to obtain a legible postmark by the due date for its exceptions to be timely. The Respondent opted, instead, to file its exceptions by commercial delivery and, therefore, its exceptions were "considered filed on the date it [was] received by the Authority," in accordance with § 2429.21(b) of the Authority's Regulations.

Footnote # 2 for
58 FLRA No. 57

• Authority's Decision

In reaching our decision, we have not considered the Respondent's exhibits. Therefore, we find it unnecessary to rule on the General Counsel's motion to strike the exhibits. See, e.g., United States DOJ, 52 FLRA 1093, 1099 n.8 (1997).