01986990
12-14-1999
Paul M. Brown, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Paul M. Brown, )
Complainant, )
)
v. ) Appeal No. 01986990
) Agency No. 98-0252-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DISMISSAL
Complainant filed the instant appeal from the agency's August 14, 1998
letter informing complainant that accepted issues in his complaint would
be held in abeyance pending a decision regarding the certification of
a class action (which includes complainant).<1> There is no right to
directly appeal to the Commission a determination by the agency to
hold a complaint in abeyance. See 64 Fed. Reg. 37,644, 37659 (1999)
(to be codified as 29 C.F.R. �1614.401).
The agency has not clearly identified whether the class action is a
civil action or an administrative EEO complaint filed with the agency.
If the agency is referring to a class action filed in the United States
District Court for the District of Maryland (Civ. No. H-97-3154),
then the Commission notes that the class was determined to be not
entitled to certification in a decision issued on August 24, 1998.
Bostron, et al. v. Apfel, et. al., 182 F.R.D. 188, 195 (Aug. 24, 1998).
If, however, the agency is referring to a class complaint filed with
the agency, then the agency is reminded that an individual complaint
which has been subsumed within an administrative EEO class complaint
(not a civil action) shall be processed as an individual complaint of
discrimination. See 64 Fed. Reg. 37,644, 37658 (1999) (to be codified
as 29 C.F.R. �1614.204(d)(7)).
Because there is no right to file the instant appeal, 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:
Dec. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION 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 EQUAL EMPLOYMENT
ASSISTANT1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect which 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.