In the Matter of the Complaint Against ) November 16, 1993
)
ROBERT SMITH )
BEVERLY SMITH d/b/a )
NATIONAL FINANCIAL SERVICES )
NFS, INCORPORATED, )
2203 Maryland Avenue )
Baltimore, MD 21218-5581 )
and )
P.O. Box 10640 )
Baltimore MD 21218-0040 ) P. S. Docket No. 34/170
APPEARANCE FOR RESPONDENTS: Robert M. Wright, Esq.
Louis P. Ruzzi, Esq.
Whiteford, Taylor & Preston
7 Saint Paul Street, Ste. 1400
Baltimore, MD 21202-1626
APPEARANCE FOR COMPLAINT: Jerry Belenker, Esq.
Consumer Protection Law
Law Department
United States Postal Service
Washington, DC 20260-1144
Respondents have filed an appeal from an Order of an Administrative Law Judge that dismissed Respondents' application for an award of attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, because it was untimely filed. Complainant opposes the appeal.
Respondents filed their application for an award of attorney fees under the EAJA after the Judicial Officer issued a Postal Service Decision upholding an Initial Decision of an Administrative Law Judge dismissing the Complaint against
Respondents.1/ The Judicial Officer's decision, dated April 30, 1992, was sent by certified mail to Respondents' lead counsel, Mr. Barnet D. Skolnik and his co-counsel, at the address of record which was the address of the law firm where both counsel worked. The law firm received the Postal Service Decision on May 5, 1992, and forwarded it unopened to Mr. Skolnik, who had left the firm while the matter was pending before the Judicial Officer.2/ Mr. Skolnik received the Postal Service Decision on June 8, 1992.
On July 8, 1992,3/ Respondents, through new counsel4/, filed a notice of substitution of counsel and an EAJA application requesting an award of attorney fees. Complainant opposed the application claiming it was untimely filed. The Administrative Law Judge issued an Order dismissing Respondents' application for attorney fees because it was not filed within the time required by the EAJA and implementing Postal Service regulations.
Under the EAJA, a prevailing party5/ must file its application for attorney fees within 30 days of "final disposition." 5 U.S.C. § 504(a)(2). This 30 day filing deadline is jurisdictional, and cannot be waived, or extended by agency regulation or special circumstances. Long Island Radio Company v. NLRB, 841 F.2d 474, 476 (2nd Cir. 1988); Columbia Manufacturing Corporation v. NLRB, 715 F.2d 1409, 1410 (9th Cir. 1983); Del Transport, Inc., PSBCA No. 1279, 86-3 BCA ¶ 19,262, 97,402, 97,403.6/ For purposes of this proceeding, Postal Service regulations define "final disposition" as the last date on which a petition for reconsideration could have been filed. 39 C.F.R. § 960.12(c)(3). In this case, a petition for reconsideration could have been filed within 10 days after receipt of the Postal Service Decision. 39 C.F.R. § 952.27. Since neither party7/ filed a motion for reconsideration, "final disposition" took place 10 days from the date of receipt of the Postal Service Decision and the last date on which a timely EAJA application could be filed was 30 days thereafter.
Respondents contend they received the Postal Service Decision on June 8, 1992, the date it was received by Mr. Skolnik, making June 18, 1992, the final date to file a motion for reconsideration, and Monday, July 20, 1992,8/ the final date to file the EAJA application. Complainant contends that Respondents received the decision on May 5, 1992, thus establishing May 15, 1992, as the last date for filing a motion for reconsideration, and Monday, June 15, 19929/ as the last date for filing the EAJA application.
The determinative issue is whether the date for computing the period for filing the EAJA application begins to run from May 5, 1992, the date the law firm received the Postal Service Decision, or from June 8, 1992, the date Mr. Skolnik received the decision after his former law firm forwarded it to him unopened. On the facts presented, it is concluded that May 5, 1992, is the date to be used in computing the EAJA filing period.
Postal Service regulations require Respondents in a § 3005 proceeding to promptly file a notice of change of attorney. 39 C.F.R. 952.16(d). Respondents did not file [a change of address notice for Mr. Skolnik or] a notice of change of counsel until they filed their EAJA application on July 8, 1992. Therefore, the Postal Service Decision was properly mailed to the attorney and address of record and delivery to that address on May 5, 1993, was the date of receipt of the Postal Service Decision by Respondents.10/
Any delay in actual receipt of the Postal Service Decision was attributable solely to Respondents' failure to file a notice of change of counsel and the failure of their former counsel, current counsel, or the law firm with which both were associated, to make appropriate arrangements for handling all outstanding cases after Mr. Skolnik's departure from the law firm. See c.f. James D. Mample, P.S. Docket No. 40/75 at 4 (P.S.D. Aug. 13, 1993) (delay in receiving Initial Decision attributable solely to Petitioners' failure to file a new forwarding request or to pick up mail); William Kuntz, III, P.S. Docket No. 40/55 at 3 (I.D. March 4, 1993) aff'd (P.S.D. April 26, 1993) (Petitioner's responsibility to ensure that he or agent timely picked up mail); Sol Gerschitz, P.S. Docket No. 30/59 at 3 (I.D. on Motion to Dismiss Petition, June 27, 1988) (actual receipt delayed by Petitioners' failure to notify Postal Service of new address); Encore Publishing Company, P.S. Docket No. 1/79 at 1 (P.S.D. March 1, 1973) (time for appeal began to run on date mailing tendered even though delivery not complete). Under such circumstances Respondents' filing of their EAJA application on July 8, 1992, cannot be considered to be timely.
Accordingly, Respondents' appeal is denied and the Order of the Administrative Law Judge dismissing Respondents' EAJA application as untimely is affirmed.
James A. Cohen Judicial Officer
1/ The Administrative Law Judge concluded that Complainant, the United States Postal Service, had not proved that Respondents were engaged in a false representation scheme within the meaning of 39 U.S.C. § 3005.
2/ The record does not indicate whether co-counsel also left the firm prior to the issuance of the Judicial Officer's decision or remains with the firm although no longer associated with this case.
3/ The substitution of counsel and EAJA application are both dated July 2, 1992, but were not received by the Recorder until July 8, 1992. The Postal Service has held that documents are "filed" when mailed, On Time Postal Services, Inc., PSBCA No. 2528 at 5, 91-2 BCA ¶ 23,770, 119,065; Hilderbrand, PSBCA No. 1734 at 2 (Motion for Reconsideration, Aug. 10, 1988); F.W.H. Motor Transit, Inc., PSBCA No. 1317 at 2 (Motion for Reconsideration, Nov. 22, 1985), however, in this case it is irrelevant whether the July 2, 1992, mailing date, or the July 8, 1992, date of receipt is used as the official date of filing.
4/ New counsel were employed by the same law firm that received the Postal Service Decision and where Mr. Skolnik had been employed during his involvement in these proceedings.
5/ Under the Initial Decision of the Administrative Law Judge and the Postal Service Decision of the Judicial Officer, Respondents were the prevailing party in this proceeding.
6/ But see Golbach v. Sullivan, 779 F. Supp. 9 (N.D.N.Y. 1991) holding that the 30 day filing period in the EAJA is not jurisdictional but a statute of limitations subject to equitable tolling and waiver.
7/ Complainant does not concede (and we make no ruling) that Respondents could even file a motion for reconsideration since they prevailed on all issues. The fact that Complainant could have filed such a motion suggests that the EAJA application period should begin to run 10 days from the date Complainant received the Judicial Officer's decision. However, because Complainant believes the application is untimely regardless of whether the time period begins on the last day Complainant could have filed a motion for reconsideration or the last day Respondents could have filed such a motion, they agree that for the purposes of this decision the time period may be calculated beginning 10 days after the date Respondents received the Judicial Officer's decision.
8/ The final day of the 30 day filing period fell on a weekend, July 18, 1992, making the EAJA application due the next working day on Monday, July 20, 1992.