01a34856
09-27-2004
Roy E. Chumley, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Roy E. Chumley v. Department of Homeland Security (Customs and Border
Protection)
01A34856
09-27-04
.
Roy E. Chumley,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 01A34856
Agency Nos. TD-98-2297; TD-99-2046
DECISION
On August 21, 2003, complainant, through counsel, filed an appeal from the
agency's decision dated July 21, 2003, denying his request for attorney's
fees on the grounds that the petition was filed beyond the time period
set out in Chumley v. Department of Homeland Security, EEOC Request
No. 05A30263 (February 24, 2003), affirming, EEOC Appeal No. 01A03803
(August 23, 2002). The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
In the "Statement of Rights" in the decision in EEOC Request No. 05A30263,
complainant was informed that a petition for attorney's fees must
be submitted to the agency "within thirty (30) calendar days of this
decision becoming final." (� H0900). Complainant submitted his petition
for attorney's fees to the agency on May 28, 2003. The agency denied
the fee request, noting that the petition was at least 58 days late and
that complainant neither acknowledged nor offered an explanation for
the untimeliness of the request.
In his appeal, complainant contended that the agency never requested that
complainant submit a petition for attorney's fees and that attorney's
fees could only be claimed after expiration of the 90-day period to file
a civil action. Both of these arguments are specious and without merit.
In the first instance, the onus is on the attorney claiming fees to
file a petition in a timely manner. EEOC Request No. 05A30263 became
final five days after issuance, or, in this case, March 3, 2003.<1>
Complainant had 30 days from receipt of the RTR within which to file a
petition for attorney's fees. 29 C.F.R. � 1614.501(e)(2)(i).
The time limitations in our regulations are subject to waiver, estoppel,
and equitable tolling. 29 C.F.R. � 1614.604(c). In this matter, however,
complainant did not request an extension or offer a reason to extend the
time limitations. In addition, we note that counsel for complainant is
an experienced attorney, who has appeared in many proceedings before
this Commission, and should be familiar with the time limitations in
our regulations. The petition for attorney's fees was dated May 28,
2003, more than 75 days after issuance of the RTR. For the foregoing
reasons, we find complainant's petition for attorney's fees is untimely.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___09-27-04_______________
Date
1In its decisions, the Commission states that it presumes receipt of
decisions within five (5) days of mailing. Because March 1, 2003, fell
on Saturday, we assume receipt of the decision on the RTR on Monday,
March 3, 2003. We note that a stamp mark on the copy of complainant's
RTR, attached to the instant appeal as Exhibit D, indicates "received
March 4, 2003."