01A30603_r
03-25-2003
IN THE MATTER OF: Jerome Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jerome Smith v. Department of Veterans Affairs
01A30603
March 25, 2003
.
IN THE MATTER OF:
Jerome Smith,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30603
Agency No. 94-0255
Hearing No. 250-94-8256X
DISMISSAL OF APPEAL
James W. Stanley filed the instant appeal on October 23, 2002, requesting
approval of his attorney's fee application for work he performed at
the appellate level. He also contends that his appellate research,
for which he requests reimbursement, reveals that �punitive damages are
available as is interest,� in Smith v. Department of Veterans Affairs,
EEOC Appeal No. 01A01738 (Sept. 23, 2002).
In response, the agency provides a December 14, 1998 letter, signed by
complainant, and addressed to �Attorney James Stanley,� stating, �I,
Jerome Smith, [am] terminating your legal services as of 12-5-98 in my
EEO Complaint, due to [the] unfair contract wages that you require.�
In a letter carbon copied to the agency, but not to complainant,
Stanley disputes his firing. He states, �If you need a statement from
Mr. Smith, he will be [sic] gladly furnish it to you.� He does not,
however, provide any statement or other documentation to verify his
continued representation of complainant Smith. Further, the Commission
notes that Mr. Stanley provided no brief or other substantive argument
to support complainant's appeal of the compensatory damages issue in
Smith v. Department of Veterans Affairs, EEOC Appeal No. 01A01738.
The Commission's decision in EEOC Appeal No. 01A01738 did not refer to
complainant as represented, or otherwise explicitly provide for attorney's
fees. Smith v. Department of Veterans Affairs, EEOC Appeal No. 01A01738.
Based on the above information, the Commission finds that James W. Stanley
no longer represents complainant Smith. Therefore, he does not have
standing to file the instant appeal. Low v. Department of the Navy,
EEOC Appeal No. 01991285 (Feb. 15, 2000), req. for recons. den., EEOC
Request No. 05A00467 (May 26, 2000) (former attorney filing request for
fees is not a party, and does not have standing to file an appeal with the
Commission). Attorney's fees are awarded �to the applicant or employee,�
not directly to his former attorney. 29 C.F.R. � 1614.501(e)(1).
Further, the Commission notes that even if Mr. Stanley still represented
complainant, his appeal would be improper. Petitions or requests for
attorney's fees must be filed with the agency or EEOC Administrative
Judge, not directly with the Commission on appeal. 29 C.F.R. �
1614.501(e)(2)(i). Further, Mr. Stanley had no decision on his fee
petition from which to appeal. See 29 C.F.R. � 1614.501(e)(2)(ii)(A)
(requiring agency to issue decision on fee petitions, with appeal rights
to the Commission). Regarding damages and interest, complainant could
have requested reconsideration of the Commission's decision. 29 C.F.R. �
1614.405(b); See Smith v. Department of Veterans Affairs, EEOC Appeal
No. 01A01738 (�requests to reconsider . . . must be filed with the
Office of Federal Operations within thirty (30) calendar days . . .�).
Since Mr. Stanley does not represent the complainant, the present
appeal is not such a request. The Commission also notes that punitive
damages are not available against the federal government. Funk v. United
States Postal Service, EEOC Appeal No. 01984772 (Jul. 26, 2001) (citing
Richardson v. United States Postal Service, EEOC Appeal No. 01930624
(Aug. 9, 1994)) (�Section 102(a)(3) of the Civil Rights Act of 1991
specifically disallows punitive damages against a government entity.�).
CONCLUSION
Accordingly, the present appeal is DISMISSED.
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
March 25, 2003
__________________
Date