Appeal Filed Three Days Too Late

Wednesday, May 01, 2013

In Scott v. Dep’t of Transportation, Docket No. CH-0752-12-0476-I-1 (March 12, 2013), the Merit Systems Protection Board affirmed the administrative judge’s initial decision finding that appellant Scott had not shown good cause for her three-day delay in filing her mixed case appeal with the Board.

Under the regulations, Scott had 30 days from the date that she or her designated representative received the agency’s final decision (FAD) on her EEO case, whichever was earlier, to file a Board appeal. Scott received the FAD on April 10, 2012, and did not contest the agency’s evidence that the FAD had been delivered to her designated representative on April 5, 2012. Therefore, Scott should have filed her Board appeal by May 7, 2012. However, she did not do so until May 10, 2012, three days after the 30-day deadline.

In her petition for review, Scott contended that she hesitated to file her appeal because the agency provided her with the wrong Board office for filing. The Board rejected this argument. Reasoning that the agency had notified her of her right to file a Board appeal, provided her with the correct 30-day time limit for filing an appeal and enclosed the appropriate appeal form, the Board found that the agency had provided adequate notice of appeal rights. Furthermore, the Board found that Scott waited weeks to contact a regional Board office to inquire about the correct office for her to file her appeal, and that she was not acting pro se.

Therefore, the Board concluded that Scott had failed to exercise due diligence or ordinary prudence, and that, thus, she had not established good cause for delay. In addition, the Board found that Scott had not submitted any new or material evidence sufficient to grant her petition for review. Accordingly, the Board denied Scott’s petition for review and affirmed the AJ’s finding that she had not shown good cause for the delay in filing her Board appeal.

This case illustrates the importance of being aware that having a designated representative means that service upon your representative is equivalent to service upon the employee for establishing time limits.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to https://www.passmanandkaplan.com.