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34:0307(58)CU
The decision of the Authority follows:
34 FLRA NO. 58
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON, D.C.
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 476
(Petitioner)
3-CU-90003
(34 FLRA 16 (1989))
ORDER DENYING REQUEST FOR RECONSIDERATION AND REQUEST FOR STAY
January 17, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on the Department of
Housing and Urban Development's (the Agency's) request for
reconsideration of the Authority's decision in U.S. Department of
Housing and Urban Development, Washington, D.C. and American
Federation of Government Employees, Local 476, 34 FLRA 16
(1989), and a request for a stay of the Regional Director's
Decision and Order. For the reasons set forth below, we deny the
requests.
II. Background
On July 21, 1989, the Regional Director issued a "Decision
and Order on Petition for Clarification of Unit." In the Decision
and Order, the Regional Director stated that "(p)ursuant to
section 2422.17 of the Authority's Rules and Regulations, any
party may file an application for review of (the)Decision and
Order with the Authority within 60 days of the date of
(the) Decision and Order. This 60 day time limit may not be
extended or waived." Regional Director's Decision at 13 (footnote
omitted) (emphasis added). In addition, the Regional Director
stated that "(t)he application for review must be mailed to the
Federal Labor Relations Authority . . . no later than September
21, 1989." Id. at 14.
On September 21, 1989, the Agency hand-delivered its
application for review to the Authority's Docket Room. On October
24, 1989, the Authority dismissed the application for review as
untimely filed. The Authority noted that the 60-day period for
filing the application began on July 22, 1989, and expired on
September 19, 1989.
III. Requests for Reconsideration and Stay
On November 8, 1989, the Agency timely filed a request for
reconsideration of the Authority's decision and a request for a
stay of the Regional Director's Decision and Order. The Agency
contends that extraordinary circumstances exist to warrant
reconsideration of the Authority's decision. The Agency argues
that it should not be penalized for following the Regional
Director's erroneous instruction that September 21, 1989, was the
filing deadline for the application for review.
The Agency contends that, because it relied on the Regional
Director's statement, the doctrine of equitable considerations
should be applied to waive or toll the time limit. The Agency
asserts that whether a time limit contained in any act of
Congress is jurisdictional, and therefore not subject to
"equitable considerations," is primarily a determination of the
congressional policy underlying that portion of the act to which
the time limit attaches. Application for Review at 2, citing U.S.
Department of Housing and Urban Development and American
Federation of Government Employees, AFL - CIO, Local 476, 27 FLRA
852, 854 n.(5) (1987). The Agency argues that "nothing in the
history of Section 7105(f) (of the Statute) precludes the
application of equitable principles in computing the time
period." Id. at 3.
IV. Analysis
A party can request reconsideration of a final decision or
order of the Authority when it can establish "extraordinary
circumstances" for so doing. 5 C.F.R. 2429.17. We conclude that
the Agency does not establish that extraordinary
circumstances exist which would warrant reconsideration of our
final order in this matter.
We find the Regional Director's erroneous instruction
concerning the filing deadline to be inexcusable, and we do not
condone it. Parties must be able to rely on the accuracy of the
information provided to them by FLRA employees. It is of great
concern to us that the Regional Director communicated incorrect
filing information to the parties.
However, "(p)arties dealing with the Government are charged
with knowledge of and are bound by statutes and lawfully
promulgated regulations despite reliance to their pecuniary
detriment upon incorrect information received from Government
agents or employees." Cheers v. Secretary of Health, Education,
and Welfare, 610 F.2d 463, 469 (7th Cir. 1979) (citing Flamm v.
Ribicoff, 203 F. Supp., 507, 510 (S.D.N.Y. 1961)), cert. denied,
449 U.S. 898 (1980). See, for example, Goldberg v. Weinberger,
546 F.2d 477, 481 (2d Cir. 1976) (misinformation given by an
apparently authorized government agent does not excuse claimant's
failure to meet statutory and regulatory qualifications to obtain
benefits), cert. denied, 431 U.S. 937 (1977). See also Heckler v.
Community Health Services, 467 U.S. 51, 63 (1984) ("the general
rule (is) that those who deal with the Government are expected to
know the law and may not rely on the conduct of Government agents
contrary to law"). Thus, parties filing actions with the
Authority share responsibility for being knowledgeable of the
statutory and regulatory filing requirements. Regardless of such
shared responsibility, we emphasize that Regional Directors and
all FLRA employees must ensure that correct filing information
is communicated to the parties.
While the circumstances of this case are regrettable, the
Authority has determined in sections 2422.17(a) and 2429.23(d) of
its Rules and Regulations that the time limit for filing an
application for review of a Regional Director's Decision and
Order concerning representation proceedings may not be extended
or waived. We are without authority to modify our existing Rules
and Regulations by merely issuing a decision. American Federation
of Government Employees, AFL - CIO, Local 3090 v. FLRA, 777 F.2d
751, 759 (D.C. Cir. 1985) (FLRA entitled to alter established
regulation by means of established rulemaking procedures, not by
adjudication); Pueblo Depot Activity, Pueblo, Colorado, 21 FLRA
1142, 1143 (1986) (citing 2 K. Davis, Administrative Law
Treatise, 7.29, at 155-56 (2d ed. 1979)).
In view of the requirements of our Rules and Regulations, we
do not reach the Agency's argument that the time limit
established in section 7105(f) of the Statute is not
jurisdictional and is, therefore, subject to being waived or
tolled on the basis of equitable considerations. However, even
assuming that equitable considerations could be applied to the
present case, we note that: (1) the Agency regularly is a party
before the Authority and is well acquainted with the Authority's
Rules and Regulations and the Statute; (2) the Regional Director
stated in his decision that the application for review had to be
filed within 60 days of the date of his decision and cited
section 2422.17 of our Rules and Regulations; and (3) all of the
information necessary for the Agency to satisfy timely filing
requirements was readily available to the Agency.
Accordingly, in view of the applicable regulations and
Authority precedent, we conclude that the Agency has failed to
establish extraordinary circumstances warranting reconsideration
of the Authority's Order dismissing the application for review.
V. Order
The Agency's requests for reconsideration of the Authority's
decision in 34 FLRA 16 and for a stay of the Regional Director's
Decision and Order are denied.