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.