Decision No. 13,300

(December 8, 1994)

Paul A. Crotty, Corporation Counsel, attorney for respondent, Anna H. Zetlin, Esq., of counsel

SOBOL,Commissioner.--This is an application to reopen decision No. 13179 (33 Ed Dept Rep 644). In it, I dismissed petitioner's appeal as untimely because it was filed 28 years after the rating at issue. This application must also be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that they are addressed solely to the discretion of the Commissioner, and will not be granted unless petitioner shows that a prior decision was rendered under a misapprehension of fact or that there is new and material evidence which was unavailable when the original decision was made (Appeal of Dreymann, 33 id. 442).

Petitioner claims that the original dismissal was rendered under a misapprehension of fact because I stated therein that there was "simply no evidence or explanation for why petitioner failed to pursue an appeal on her behalf for 28 years from June 1964 to November 1992" (Appeal of Lucas, 33 id. 644). The decision referenced four letters petitioner had submitted to document her attempts over the years to challenge the unsatisfactory rating.

Petitioner has not shown that the original decision was made under a misapprehension of fact. Rather, petitioner's application consists mainly of reargument as to why the original appeal should be sustained. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Appeal of Burton, 33 id. 426).

Nor does petitioner present any new facts in this application. Although she submits certain letters for the first time, they are unavailing because the facts upon which a reopening is granted must be facts which were unavailable at the time of the prior proceeding (Application of Wong, 33 id. 570). Petitioner has the burden to present all available evidence in the original appeal (Application of Wong, supra; Application of Thibodeau, 30 id. 206). This was specifically pointed out to petitioner in a September 3, 1992 letter from my Office of Counsel, which stated that "any evidence that you wish to be considered by the Commissioner must be submitted as part of your petition or in accordance with the procedures set forth in '276.5 of the Regulations of the Commissioner of Education." Petitioner makes no claim that these newly submitted letters were not available at the time of the original decision.

Even if these additional submissions had been part of the original record, they still do not overcome the significant procedural defects in petitioner's case (SeeAppeal of Lucas, supra).

Consequently, petitioner has failed to demonstrate a basis for reopening my prior decision.

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