01982168
10-29-1998
David J. Kyler, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
David J. Kyler, )
Appellant, )
)
v. ) Appeal No. 01982168
) Agency No. 96-0203-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration,)
Agency. )
)
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 28, 1998, appellant filed an
appeal with this Commission from the September 24, 1997 final agency
decision ("FAD") dismissing his EEO complaint of unlawful employment
discrimination.
By regulation, appeals to the Commission must be filed within thirty
calendar days after an appellant receives notice of the final agency
decision. 29 C.F.R. �1614.402(a). If the complainant is represented by
an attorney of record, the thirty-day time period shall be calculated
from the date of receipt of the required document by the attorney.
In all other instances, the time within which to appeal shall be
calculated from the receipt of the required document by the complainant.
29 C.F.R. �1614.402(b).
A copy of the certified mail return receipt card reveals that the FAD
was received by appellant's attorney of record on September 29, 1997.
A review of the FAD reveals that the agency properly advised appellant
that he had thirty (30) calendar days after receipt of its final
decision to file his appeal with the Commission. Therefore, in order
to be considered timely, appellant had to file his appeal no later than
October 29, 1997. Appellant has not offered adequate justification
for an extension of the applicable time limit for filing his appeal.
Accordingly, appellant's January 28, 1998 appeal is hereby DISMISSED.
See 29 C.F.R. ��1614.402 and 1614.604.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 29, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations