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January 11, 2012

Reopening an appeal decided by the Commissioner of Education


Reopening an appeal decided by the Commissioner of Education

Application to reopen the Appeal of Michael P. Thomas, Commissioner of Education Decision #16,322

8 NYCRR §276.8 [of the Commissioner’s regulations] address the procedures for submitting an application to reopen a prior decision by the Commissioner. The rule provides that such an application is considered solely to the discretion of the Commissioner and such applications will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. 

Significantly, a reopening “may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.”

The appeal that Thomas sought to have reopened had been dismissed as untimely. 

In his application for reopening, Thomas alleged that the Commissioner Steiner did not rule on his request for an order compelling the employer to cease certain actions. The Commissioner, however, said that as his appeal was found to be untimely, it was unnecessary address Thomas’ request in this regard.

Thomas, said the Commissioner, failed to demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made but was attempting to reargue the original application. However, the Commissioner explained, “It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening,” citing a number of earlier decisions including Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112, and denied Thomas’ application to reopen the underlying appeal.

The Thomas decision is posted on the Internet at:

The Gillen decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16112.htm


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