By Deryn Sumner, August 16, 2017

Sometimes we all just need a little more time, which is why requests for extension were created.  For years now, the EEOC’s Office of Federal Operations has made such requests a simple affair.  Email the designated email address ([email protected]) and plead your case for more time.  This would typically result in receipt of a form letter granting you an extension to get your appeal brief together (and maybe even come up with some cogent arguments while you’re at it).  I’d never heard of any request for a reasonable amount of time being denied until a few weeks ago, when someone in my office circulated the response they had received after requesting a few extra weeks to submit an appeal brief:

“To ensure that the Office of Federal Operations (OFO) is able to resolve federal sector appeals as efficiently as possible, we are only granting extensions of time to file a brief when the party can demonstrate that they were incapacitated during the regulatory time frame for doing so, or for some other serious intervening event. On the rare occasions that OFO deems that an extension is warranted, it will be limited to ten (10) business days.”

Now, I understand and appreciate that the Office of Federal Operations wants to expedite processing of appeals.  I’m all for it and as I mentioned in last month’s newsletter, I’m happy to provide the Office of Federal Operations with a list of appeals that have been pending for a while that still need a decision.  However, the move towards requiring such a strong showing in support of an extension request seems to fail to appreciate the nature of litigation and the all-consuming nature of hearing and trial work.  In reality, granting the parties with a reasonable extension of time, between 30 and 60 days, to submit an appeal brief will not substantively slow down the processing of these appeals.  Applying the standard of incapacitation, especially when most requests for extension are likely filed by attorneys, seems unnecessarily harsh.  Being in back-to-back hearings and depositions is not being incapacitated in the traditional sense, but it does prevent an attorney from being able to meet other deadlines to draft filings, such as appeal briefs.  Given the period of time that it takes between noticing an appeal and getting a decision, which in my experience has been more than two years, denying requests for a month or so of extra time is not going to expedite processing all that much, and does serve to discourage federal sector attorneys from being able to take on appeals when they have other cases pending.

I hope the Office of Federal Operations will revisit this policy and revise it to be more in line with the reality of litigation practice.  [email protected]

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