OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
SHERRY M. BRITTON,
v. Case No. 01-AC-346(CV,FM, RP)
February 2, 2004
OFFICE OF THE ARCHITECT
OF THE CAPITOL
Before the Board of Directors: Susan
S. Robfogel, Chair; Barbara L. Camens, Alan V. Friedman; Roberta
L. Holzwarth; Barbara Childs Wallace, Members.
DECISION AND ORDER OF THE
BOARD OF DIRECTORS ON EMPLOYING OFFICE’S MOTION TO DISMISS,
OR IN THE ALTERNATIVE TO STRIKE, COMPLAINANT’S PETITION FOR
The Board, by decision and order dated June
3, 2003, remanded this matter with instructions to the hearing officer.
The hearing officer subsequently issued his dispositive decision
on November 5, 2003. The Office of Compliance’s Executive
Director transmitted that decision to the parties by U.S. certified
mail, return-receipt requested, on November 5, 2003. His transmittal
letter advised the parties that the hearing officer’s decision
had been entered into the records of the Office on November 5, 2003,
and that the appeal period ran from that date..
The Complainant filed her petition for review
(“PFR”) with the Office on Monday, December 8, 2003.
Section 406(a) of the Congressional Accountability
Act (“the Act”) [2 U.S.C. §1406(a)] and §8.01(a)
of the Office’s Procedural Rules prescribe that any aggrieved
party may file a PFR of a hearing officer’s decision “not
later than 30 days after entry of the decision in the records of
II. Positions of the Parties
Complainant acknowledges that she did not file
her appeal within 30 days after the hearing officer’s decision
was entered into the records of the office.1
However, the Complainant contends that her PFR was timely filed
under §1.03(c) of the Office’s Procedural Rules, which
adds a prescribed number of days as a time allowance for receipt
of mailed documents, whenever a person or party has the right or
is required to do some act within a prescribed period “after
the service of a notice or other document upon him or her”
and the notice or document is mailed. The number of days added is
dependent upon the method of service for the mailing of official
notices (5 days for regular mail; 2 days for expedited delivery
or express mail; actual date of receipt for certified mail, return-receipt
requested). Complainant submits that even if she had received the
Executive Director’s November 5, 2003 certified mail transmittal
letter on the following day,2 her December
8th filing would have fallen within the mandated 30-day period.
Respondent argues that Complainant’s PFR
was filed untimely under Section 406(a) of the Act, and §8.01(a)
of the Procedural Rules: because the clock starts ticking upon entry
of the decision in the records of the Office (November 5, 2003),
and not upon any later date when the Complainant receives the Office’s
mail transmitting the decision. Respondent submits that this CAA
requirement is unequivocal and dispositive of the appeal. Respondent
supports its position by citation of case law addressing rules of
statutory construction . Respondent additionally relies upon judicial
precedent applying Rule 4(a)(1) of the Federal Rules of Appellate
Procedure, which also starts the appellate clock from the date of
entry of a judgment or order. Accordingly, Respondent moved that
the appeal be dismissed or that Complainant’s PFR be stricken.
Complainant does not proffer any equitable basis
for the Board to accept her PFR if it were untimely filed or otherwise
contend that the circumstances underlying her filing of the PFR
constitute “excusable neglect.” . Complainant contends
only that her PFR was timely filed, computing commencement of the
appeal period from the earliest date that she could have received
the mailed notice of the hearing officer’s decision. However,
Respondent submits that the PFR was untimely because it was not
filed within 30 days after the Office entered the hearing officer’s
decision into its records.
This constitutes the Board’s first occasion
to decide the petition for review time computation issue raised
by this appeal. We are persuaded that the appeal time period runs
from the date that a hearing officer’s decision is entered
into the Office’s record. In this regard, the Office’s
procedural rule §1.03(c) for
extending filing periods is inapposite because that provision applies
only to situations keyed to the service of a mailed notice or document
on a person or party. Section 406(a) of the CAA, on the other hand,
specifically links the appeal period to the entry of a decision
in the Office’s records, and that is how the federal courts
have interpreted essentially identical language in the Federal Rules
of Appellate Procedure. In its leading decision on this point, the
U.S. Court of Appeals for the Federal Circuit, computing the appeal
period from the date of a judgment’s entry into the record,
dismissed an appeal for having been filed two days late. Sofarelli
Associates, Inc. v. The United States, 716 F.2d 1395 (Fed.
Cir. 1983). Accord, Browder v. Director,
Department of Corrections of Illinois, 434 U.S. 257 (1978);
Patricio B. Bautista v. Anthony J. Principi,
Secretary of Veterans Affairs, 2003 U.S. App. LEXIS 17609
(Fed. Cir. 8/1/2003); Amos Cox v. Anthony
J. Principi, Secretary of Veterans Affairs, 2003 U.S. App.
LEXIS 2432 (Fed. Cir. 1/31/2003); Florida
Rock Industries, Inc. v. United States, 2000 U.S. App. LEXIS
21752 (Fed. Cir. 2000); United States of
America v. Glenn Efren Sisneros, 2001 U.S. App. LEXIS 14414
(10th Cir. 2001); Horoutunian v. INS,
87 F.3d 374, 377 (9th Cir. 1996); Christopher
Binder v. District of Columbia, et al., 1992 U.S. App. LEXIS
23143 (D. C. Cir. 1992); Welsh v. Elevating
Boats, Inc., 698 F.2d 230, 231-32 (5th Cir. 1983).
Accordingly, we find that the Complainant’s
petition for review was untimely filed.
Pursuant to Section 406(e) of the Congressional
Accountability Act and Section 8.01(d) of the Office’s Procedural
Rules, the Board grants the Respondent’s motion to dismiss
this appeal on the basis of untimeliness.
It is so ordered.
CERTIFICATE OF SERVICE
I hereby certify that on this day of February
2, 2004, I delivered a copy of this Decision of the Board of Directors
to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
Jeffrey H. Leib, Esquire
Attorney at Law
5104 34th Street, N.W.
Washington, D.C. 20008
First-Class Mail Postage-Prepaid
& Facsimile Mail (202-789-1708)
Christine Cooper, Esquire
McGuiness, Norris & Williams
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
Edgard Martinez, Esq.
Office of Architect of the Capitol
Office of Employment Counsel
Ford House Building, Room H2-202
Washington, D.C. 20515
Kisha L. Harley
Office of Compliance