I-4-1-31.Declarations — Untimely Filed Complaint

Last Update: 9/13/05 (Transmittal I-4-15)

When a claimant fails to comply with the statutory and regulatory time requirements for filing a civil action, the staff ordinarily will complete an appropriate declaration using the fill-in draft in I-4-1-111.

NOTE:

When the ALJ or the AC issues a dismissal order, the staff must not complete an “untimely filed” declaration, regardless of the filing date. Instead, the staff must assign the case to an analyst pursuant to previously described procedures.

A. Determining the Filing Deadline Date

A claimant has 60 days following receipt of a final decision within which to file the civil action. Unless the case involves the expedited appeals process (EAP) (see I-4-1-42), that final “decision” is either an AC decision or an AC denial of a request for review. We presume that the claimant receives the AC notice within 5 days after the date of the notice unless there is a reasonable showing to the contrary.

To determine whether a complaint is timely, begin by adding 5 calendar days to the date of the AC's notice. If the fifth day is a Sunday or Federal holiday or non-work day, assume that receipt occurred on the next U.S. Postal Service business day. Add 60 calendar days to the “presumed receipt” date. This is the civil action filing deadline date. If this date falls on a Saturday, Sunday or a federal holiday or non-work day, the deadline is the next Federal business day. It is important to remember that both the U.S. Postal Service and the Federal district courts are closed on Federal holidays.

Any complaint filed beyond the deadline date is untimely unless the AC has granted an extension of time. The staff must assign any case involving a request for an extension of time which the AC has not yet considered to an analyst.

B. Determining the Date of Filing

It is not necessary that the actual complaint be filed by the deadline date. A timely motion to proceed in forma pauperis (see I-4-1-2) or any other appropriate filing with the court will satisfy the deadline. Moreover, the Commissioner will consider any complaint date stamped “Received”, “Tendered” “Lodged” or any other such designation by the clerk of the court as being filed within the 60-day period as timely even if the “filing date” is beyond the deadline.

In any case in which the complaint appears untimely, the staff must phone the clerk of the court to determine if and when the claimant filed an in forma pauperis motion. The staff must document this call and the information obtained on a Documentation of Civil Action Filing Date Memorandum (see I-4-1-110). The staff may also obtain this information via the Public Access to Court Electronic Records (PACER) system at http://www.pacer.gov/.

C. Using the Fill-in Draft

Unless the AC has acted upon a request for an extension of time, the staff simply inserts the appropriate information in the blank spaces in the fill-in draft shown in I-4-1-109. If the AC denied a request for an extension of time (EOT), the staff must modify the declaration accordingly. The staff must attach as exhibits both the request for the extension of time and the AC's denial of that request. The staff must make no other modifications to the declaration form. Neither the staff nor the analyst will complete an untimely filed declaration when the AC has not yet acted on a request for an EOT.