01a52195
04-22-2005
John Stevenson, Jr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Safety Administration), Agency.
John Stevenson, Jr. v. Department of Homeland Security (Transportation
Safety Administration)
01A52195
April 22, 2005
.
John Stevenson, Jr.,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Safety Administration),
Agency.
Appeal No. 01A52195
Agency No. 7-03-7174
DISMISSAL OF APPEAL
Following a decision by an Administrative Judge dated August 4, 2004,
complainant filed a document with the Commission on October 1, 2004
stating: �I am requesting the right to file a civil action in a federal
district court, the name of the proper defendant in any such lawsuit, the
requesting a [sic] appointment of counsel and waiver of court costs or
fees.� The Commission inadvertently docketed this notice as an appeal,
but on January 5, 2005, closed the case and notified complainant that he
should file his civil action directly with the appropriate district court.
On January 13, 2005, complainant notified the Commission that he wanted
to withdraw his civil action and appeal to the Commission.
The certificate of service presumes that complainant received the
Administrative Judge's decision by August 9, 2004. The Administrative
Judge's decision properly advised complainant that if the agency did not
issue a final order 40 days after the decision was issued, complainant
had 30 thirty days thereafter to appeal to the Commission. Therefore,
in order to be considered timely, complainant had to file his appeal no
later than October 18, 2004. In this matter, complainant clearly did
not intend to file an appeal with the Commission until January 13, 2005,
which is beyond the applicable time limit. Complainant has not offered
adequate justification for an extension or waiver of the applicable
time limit for filing his appeal. Accordingly, complainant's appeal is
hereby dismissed. See 29 C.F.R. � 1614.403(c).
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
_April 22, 2005_________________
Date