01a60223
03-03-2006
Edward Martinez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Immigration and Customs Enforcement), Agency.
Edward Martinez v. Department of Homeland Security
01A60223
March 3, 2006
.
Edward Martinez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Immigration and Customs Enforcement),
Agency.
Appeal No. 01A60223
Agency No. ICE-04-C-084
DISMISSAL OF APPEAL
By Notice of Appeal postmarked October 10, 2005, complainant filed an
appeal with this Commission, indicating that he was appealing an August
26, 2005 final order stating that the agency would implement an EEOC
Administrative Judge's (AJ) finding that the agency did not violate
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record indicates that the AJ issued a decision in this case on June
20, 2005. In that decision, the AJ notified the parties that within forty
(40) days of receiving the decision and the hearing record the agency is
required to issue a final order. According to 29 C.F.R. � 1614.109(i),
�if an agency does not issue a final order within 40 days of receipt
of the administrative judge's decision in accordance with 1614.110,
then the decision of the administrative judge shall become the final
action of the agency.� Here, the agency indicates that it received the
AJ's decision on June 28, 2005. The agency failed to take final action
within 40 days of receipt of this decision.<0> Accordingly, on August 8,
2005,<0> the AJ's decision became final, and complainant had thirty (30)
days from that date within which to file an appeal with this Commission.
Therefore, in order to be considered timely, complainant had to file his
appeal no later than September 7, 2005. Even if we calculate the thirty
day time frame from August 26, 2005, complainant's appeal remains untimely
as it was not filed on or before September 26, 2005. Complainant has
not offered adequate justification for an extension of the applicable
time limit for filing his appeal. Accordingly, complainant's October 10,
2005 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:
March 3, 2006
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1As noted above, the agency
inexplicably issued an untimely final order on August 26, 2005, after
the decision had already become final.
0 2Technically, 40 days would have passed on August 7, 2005, however,
since August 7, 2005 was a Sunday, the agency would have had until August
8, 2005 to take final action. See 29 C.F.R � 1614.604(d).