In response to the Order to Show Cause, Williamson stated, "the 10 day limit is not enough time for someone representing ones [sic] self to get off work or have someone send the mail to those required. I had to arrange [for] someone [to] send the mail for me as I have with this mail."
While the Board would certainly agree that the ten-business-day limitations period is short, pro se complainants, proceeding diligently, routinely invoke this Board's review by timely filing petitions for review. Thus, we do not find that Williamson's rationale for his failure to timely file his petition for review is sufficient to justify tolling the limitations period in this case. Consequently, because Williamson failed to timely file his petition and did not demonstrate that he exercised due diligence in preserving his legal rights, we DISMISS his petition for review.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 42 U.S.C.A. § 5851 (West 2003).
2 29 C.F.R. Part 24 (2006).
3 R. D. & O. at 15 (emphasis added).
4 29 C.F.R. § 24.8(a).
5 Washington Savannah's statement that the petition for review was due no later than April 13th is incorrect. The Board must receive the petition for review within ten business days, not ten calendar days of the date on which the ALJ issues the R. D. & O. 29 C.F.R. § 24.8(a).
6 29 C.F.R. § 24.1. Accord Hemingway v. Northeast Utils., ARB No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op. at 3 (ARB Aug. 31, 2000); Gutierrez v. Regents of the Univ. of Cal., ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 3 (ARB Nov. 8, 1999).
7 Gutierrez, slip op. at 3; Duncan v. Sacramento Metro. Air Quality Mgmt. Dist., ARB No. 99-01, ALJ No. 97-CAA-121 (ARB Sept. 1, 1999).
8 Hemingway, slip op. at 4; Gutierrez, slip op. at 2.
9 Gutierrez, slip op. at 3-4.
10 Id. at 3.
11 Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995), quoting Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). See also Baldwin County Welcome Ctr. v. Brown, 446 U.S. 147, 151 (1984)(pro se party who was informed of due date, but nevertheless filed six days late was not entitled to equitable tolling because she failed to exercise due diligence).
12 Baldwin County Welcome Ctr., 446 U.S. at 152.
13 Accord Wilson, 65 F.3d at 404 (complaining party in Title VII case bears burden of establishing entitlement to equitable tolling).
14 Accord Wakefield v. Railroad Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997); Hemingway, slip op. at 4-5.