34:0307(58)CU - HUD WASHINGTON, D.C. and AFGE, LOCAL 476 -- 1990 FLRAdec CU
[ v34 p307 ]
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.