IN THE MATTER OF: James H. Low, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01993013 (E.E.O.C. Feb. 15, 2000)

01993013

02-15-2000

IN THE MATTER OF: James H. Low, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


IN THE MATTER OF: )

)

James H. Low, )

Complainant, )

)

v. ) Appeal No. 01993013

) Agency No. 96-62661-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

___________________________________ )

DISMISSAL

Thomas J. McAndrew filed the instant appeal on February 26, 1999 from an

agency decision dated February 23, 1999 (amended on February 25, 1999)

regarding attorney's fees for an EEO matter settled by James H. Low

and the agency on December 13, 1996.<1> Thomas J. McAndrew is an

attorney who represented complainant when the settlement agreement was

signed. Thomas J. McAndrew and James H. Low both signed the settlement

agreement. In the February 23, 1999 decision and in the February 25,

1999 amended decision the agency awarded some attorney's fees and costs

and denied other requested attorney's fees and costs. The February 23,

1999 decision and the February 25, 1999 amended decision were issued

(at least partially) in response to the Commission's Order regarding

attorney's fees and costs in Low v. Department of the Navy, EEOC Appeal

Nos. 01973387 and 01982661 (Oct. 23, 1998).

The instant appeal was filed only by Thomas J. McAndrew. The appeal

form is signed only by Thomas J. McAndrew and in the space that requests

"Appellant's name" the appeal form states: "McAndrew, Thomas J. (as

attorney for James H. Low)." In the agency's appeal brief the agency

states:

Mr. McAndrew represented Mr. Low during the administrative processing of

Agency Complaint No. 96-62661-001. Mr. McAndrew is no longer representing

Mr. Low, and thus initiated this appeal on his own since it concerns

his purported entitlement to fees.

The Commission finds that the record indicates that the instant

appeal was filed only by Thomas J. McAndrew and not by James H. Low.

Thomas J. McAndrew is not a party in the instant matter and may not file

an appeal with the Commission. Only the complainant, James H. Low,

may file an appeal with the Commission. Attorney's fees and costs are

awarded to the "applicant or employee." 64 Fed. Reg. 37,644, 37659 - 60

(to be codified as and hereinafter cited as 29 C.F.R. � 1614.501(e)(1)).

Thomas J. McAndrew is not the applicant or employee in the instant matter.

Thomas J. McAndrew, as the representative, does not having standing to

file the instant appeal; the right to file such an appeal is possessed by

the complainant (James H. Low). Cf. Lambert v. Social Security Admin.,

EEOC Request No. 05970586 (Oct. 8, 1998) (citing Sessoms v. United

States Postal Serv., EEOC Appeal Nos. 01973440, et al. (June 11, 1998))

(complainant, not representative, can raise denial of official time

claims).

The instant appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 15, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.