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Appeals Filing an RB-89 Beyond 30 Days, in the Interest of Justice


1.  Applications for Review:

In the new regulation, at 300.13(b)(2)(iv)(A), it states that:

… The affidavit, affirmation, or other proof of service must certify that all service was completed within thirty days from the filing of the decision that is the subject of the Application for Administrative Review.

In the RB-89, in both the affidavit and affirmation, the applicant must certify that service has occurred within 30 days of the decision.

When an application is beyond thirty days, and the applicant asserts that the application should be reviewed in the interest of justice, the proper procedure is for the affiant or attorney to cross out the words "within thirty days of the filing of the decision", and in the body of the RB-89, or attached brief, provide the reason why, in the interest of justice, the late app should be considered. Of course, the decision as to whether to review or deny review is wholly within the discretion of the Board panel.

2.  Rebuttals:

Similarly, 300.13(c) calls for a certification that a rebuttal was filed within 30 days of the application, and the form RB-89.1 conforms with this requirement.

300.13(b)(4)(ii) states that the Board panel may deny review of an application not filed within 30 days.

There is no stated discretion available for a late rebuttal. However, in the event that the application was not properly or timely served, 300.13(b)(4) provides that:

  1. When a rebuttal is submitted, the necessary party shall raise the issue of defective service in its rebuttal. Failure to raise the issue of defective service in the rebuttal shall constitute a waiver of the issue.
  2. When no rebuttal is filed, the Board may consider whether the application was defectively served, and if so, the Board may deny review without decision.

So, in the circumstance where a rebuttal is not within 30 days because of untimely service of the application, the rebutting party should cross out the language certifying service within 30 days of the application. Otherwise, late rebuttals are not considered.