The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
REPORT and RECOMMENDATION
This case was referred to the undersigned by the Honorable Richard J. Arcara on February 13, 2007 for disposition of all non-dispositive matters and a report and recommendation on all dispositive issues. The matter is currently before the court on Defendant's motion to dismiss (Doc. No. 9), filed February 9, 2007, and Plaintiff's motion to appoint counsel (Doc. No. 22), filed September 6, 2007.*fn2
Plaintiff, Robert A. Moore ("Plaintiff" or "Moore"), commenced this action, pro se, on September 29, 2006 alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the American with Disabilities Act of 1990, 42 U.S.C. § 12112-12117 ("the ADA"). Plaintiff claims his former employer, the United States Department of Veterans Affairs ("Defendant" or "the Department") discharged Plaintiff on May 14, 1993 because of his race and disability. Defendant maintains Plaintiff was discharged because of his poor work attendance and need for excessive supervision.
In lieu of an answer, Defendant filed, pursuant to Fed.R.Civ.P. 12(b)(1), and 12(b)(6), the instant motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim based on the untimeliness of the instant action (Doc. No. 9) ("Defendant's motion"). On March 19, 2007, Plaintiff filed his opposition to Defendant's motion (Doc. No. 16) ("Plaintiff's Response"). Defendant filed, on April 20, 2007, a Reply Memorandum of Law (Doc. No 17) ("Defendant's Reply Memorandum").
On June 4, 2007, Defendant filed the Declaration of Mary K. Roach, Assistant United States Attorney (Doc. No. 18) ("Roach Declaration") requesting an evidentiary hearing directed to Plaintiff's assertion that neither Plaintiff nor his non-lawyer representative, Robert C. Laity ("Laity"), had received timely copies of a September 8, 2005 decision by the Office of Federal Operations of the Equal Employment Opportunity Commission ("the OFO"), thereby equitably tolling the relevant statute of limitations.*fn3 On September 6, 2007, Plaintiff filed a motion to appoint counsel (Doc. No. 22) ("Plaintiff's motion"). On October 30, 2007, Melanie M. Peterson filed an appearance as Plaintiff's counsel, pro bono.*fn4 (Doc. No. 26).
Defendant filed, on October 30, 2007, a Pre-Hearing Submission (Doc. No. 23) ("Defendant's Pre-Hearing Submission") with Exhibits A - G ("Defendant's Pre-Hearing Exh.(s) ___"). On October 30, 2007, Plaintiff filed Plaintiff's Pre-Hearing Memorandum of Law (Doc. No. 25) ("Plaintiff's Pre-Hearing Memorandum of Law") along with Exhibits 1 - 6 (Plaintiff's Pre-Hearing Exh.(s) ___"). An evidentiary hearing was conducted by the court on November 6, and November 19, 2007.
At the hearing, the court received testimony from Moore, Laity, Debra McCallum, an assistant general counsel in the Department's Office of General Counsel ("OGC") ("McCallum"), and Robert J. Barnhart, director of compliance and acting director of federal programs for the OFO appeals unit of the Equal Employment Opportunity Commission ("EEOC") ("Barnhart"). Plaintiff's Exhibits 1 - 15, except Plaintiff's Exhibit 12, were received in evidence as were Defendant's Exhibits A - D.*fn5 The parties also jointly submitted copies of the Department's complaint file regarding Plantiff's discharge and discrimination claims against the Department ("Complaint File") to assist the court. On November 19, 2007, the parties submitted the Stipulation Regarding Testimony of Richard Nelson, Defendant's Human Resources Specialist, attaching Exhibits A and B, as Joint Exhibit 1.
On June 3, 2008, Plaintiff filed a Post-Hearing Memorandum of Law (Doc. No. 41) ("Plaintiff's Post-Hearing Memorandum"), Defendant filed Defendant's Proposed Findings of Fact and Conclusion of Law (Doc. No. 40) ("Defendant's Proposed Findings") with Exhibits 1 - 9 ("Defendant's Proposed Findings and Conclusions Exh.(s) __"). Also, on June 3, 2008, the parties filed a stipulation stating Plaintiff's period of incarceration in a state prison ("Incarceration Stipulation") and agreed to the admissibility of Plaintiff's Exhibit 12 (Doc. No. 38). On June 17, 2008, Plaintiff filed a Post-Hearing Reply Memorandum of Law (Doc. No. 43) ("Plaintiff's Post-Hearing Reply") and Defendant filed a Reply to Plaintiff's Post-Hearing Memorandum (Doc. No. 42) ("Defendant's Reply").
To supplement the record, at the court's request, Defendant submitted on December 8, 2008, a letter from Assistant United States Attorney Mary K. Roach ("AUSA Roach") (Doc. No. 45) ("AUSA Roach Letter I") along with Exhibits A - C ("AUSA Letter I Exh.(s) __"), on March 17, 2009, a letter from AUSA Roach ("AUSA Roach Letter II") (Doc. No. 47) and, on May 5, 2009, a letter from AUSA Roach ("AUSA Roach Letter III") (Doc. No. 48) with an attached exhibit ("AUSA Roach Letter III Exh. A"). Plaintiff has no objection to the court's reliance on AUSA Roach Letters I - III (Doc. Nos. 45, 47, and 48). On June 5 and 8, 2009, the parties further supplemented the record with copies of correspondence and documents related to Plaintiff's administrative appeals prior to the instant action ("Supplemental Records") and stipulated this material into the record on March 16, 2010 (Doc. No. 50). Also on March 16, 2010, the parties further stipulated in evidence to Court Exhibit A (Doc. No. 49) and Court Exhibit B (Doc. No. 51).
Oral argument was deemed unnecessary. Based on the following, Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) should be GRANTED; alternatively, Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be treated as one seeking summary judgment and, as such, GRANTED. Plaintiff's motion should be DISMISSED as moot.
Moore, an African-American, was employed as a food service worker at the Department's Medical Center in Buffalo, New York ("the hospital"), when he was terminated on May 14, 1993, before expiration of his probationary period, for attendance and job performance problems. Plaintiff's Exh. 4 ¶ 1. Court Exhibit A. At that time, Moore's address was 77 Humber Avenue, Upper, Buffalo, New York. Court Exhibit A. Moore appealed his discharge to the United States Merit Systems Protection Board ("MSPB") which dismissed Moore's appeal on October 13, 1993 for lack of jurisdiction. Tr. I at 73;*fn7 Court Exh. B; Moore v. Dep't of Veterans Affairs, EEOC Appeal No. 01956594, 1996 WL 710968, at *1-2 (EEOC Dec. 6, 1996) ("Moore EEOC Decision"). In connection with Moore's 1993 appeal to the MSPB, Moore was represented by an attorney, Tr. I at 73, and used 1395 E. Delavan Avenue, Buffalo, New York, for his mailing address. Court Exh. B (MSPB dismissal of Moore's July 16, 1993 appeal to MSPB) at Certificate of Service. There is no indication in the record that Laity was involved in this proceeding.
In 1995, Moore resumed work at the hospital under a Compensated Work Therapy Worker program, Plaintiff's Exh. 3 at 3, and filed a discrimination claim regarding his 1993 termination. Tr. I at 73; Complaint Attachment 1 ("the EEO Complaint" or "Moore's EEO Complaint"). The EEO Complaint was dismissed by the Department because of Moore's failure upon returning to work, in 1995, to consult timely with an EEO counselor regarding his 1993 termination, a prerequisite to filing the EEO Complaint. Complaint File (C-2) at 3; Moore EEOC Decision at *2. After Moore's appeal to the OFO of the Department's dismissal of the EEO Complaint was rejected, Moore EEOC Decision at *1, Complaint File at C-6 (Letter to Moore at 201 Goulding Avenue, Buffalo, New York from Neal C. Lawson, Esq., OGC, dated August 28, 1995), upon Moore's request for reconsideration, filed September 20, 1996, id. at 1, by Laity as Moore's representative, Complaint File (C-1) at 3, the OFO directed the Department to investigate the EEO Complaint based, inter alia, on the Department's failure to advise Moore timely of his right to consult an EEO counselor following his 1993 discharge. Moore EEOC Decision at *2.
In accordance with the OFO's directive, the Department conducted, in February 1997, an investigation of the EEO Complaint, and a copy of the investigator's report, dated February 24, 1997, recommending that the Department's EEO Officer find the EEO Complaint to be without merit, was mailed to Moore at 201 Goulding Avenue, Buffalo, New York ("201 Goulding Avenue"). Supplemental Records (Transmittal Letter of Richard S. Droske, EEO Officer, VA Western New York Heathcare System dated April 9, 1997) at 1. Laity, on behalf of Moore, requested a hearing before an EEOC administrative judge on April 13, 1997. Supplemental Records at 4. On May 22, 1997, in a communication to the administrative judge assigned to the EEO Complaint by the EEOC's New York District Office, Moore designated Laity as his representative in connection with the prosecution of his EEO Complaint against the Department before the EEOC, Supplemental Records at 9, and stated 396 Edison Street, Buffalo, New York ("396 Edison Street") as his mailing address.*fn8 Id. While Moore's request for an EEOC hearing on his EEO Complaint was pending, on February 27, 1998, Moore, through Laity, filed a petition with the MSPB seeking a determination that the MSPB's 1993 dismissal should be reconsidered based on new evidence supporting Moore's contention that he was not a probationary employee but, rather, was a permanent employee at the time of his 1993 termination and therefore entitled to greater administrative rights in processing his termination by the Department. Supplemental Records at 17. On May 5, 1998, the OFO notified Moore it had closed Moore's appeal file based on Moore's appeal to the MSPB and mailed this notice to Moore at his address at 396 Edison Street with a copy to Laity. Supplemental Records at 10. The MSPB denied Moore's petition on November 17, 1998, and mailed copies of its denial to Moore at 396 Edison Street and to Laity at his residence at 43 Mosher Drive, Tonawanda, New York ("43 Mosher Drive"). Supplemental Records at 21; AUSA Roach Letter II ¶ 1.
On behalf of Moore, Laity appealed the MSPB's denial on November 27, 1998 by petition to the OFO, Supplemental Records at 11; AUSA Roach Letter II, Exh. A at 1, noting in the petition a change of address for Moore at that time to 201 Goulding Street. AUSA Roach Letter III, Exh. A at 2. The Certificate of Service for this appeal did not indicate a copy of the certificate had been sent to the EEOC's New York District Office. Id. Despite this notice, Moore's petition to the OFO was docketed by the OFO on December 9, 1998, using 396 Edison Street as Moore's mailing address. AUSA Roach Letter II ¶ 3. The OFO denied Moore's petition on April 19, 1999, based on a lack of EEOC jurisdiction to review the procedural ground for the MSPB's denial of Moore's February 27, 1998 MSPB petition. Supplemental Records at 34-35. Asserting a one and one-half year delay in receiving a copy of the OFO's denial, Supplemental Records at 32, Laity requested, on Moore's behalf, on September 27, 2000, the EEOC conduct a hearing before an EEOC administrative judge ("AJ") on the EEO Complaint.*fn9 Id. The request provided no address for Moore. Id.
On December 5, 2000, EEOC Administrative Judge ("AJ") David E. Licht ("AJ Licht"), at the EEOC's New York District Office in New York City and assigned to Moore's case, directed the Department provide Moore's case file to him for scheduling the hearing requested by Laity, Supplemental Records at 37; on January 8, 2001, AJ Licht directed the parties file witness lists and other information in preparation for the hearing, Plaintiff's Exh. 13 at 1-4, a copy of which was sent to Moore at 396 Edison Street, and to Laity at 43 Mosher Drive. Plaintiff's Exh. 13 at 6 ("Acknowledgment Order" or "Order"). According to Laity, Moore lived at 396 Edison Street prior to and for some period during early 2001. Tr. II at 287-88 ("I [Laity] believed he [Moore] moved in 2001") (bracketed material added).*fn10 Moore acknowledged his residence at 396 Edison Street but was unable to recall when he left that address. Tr. I at 37. The EEOC's Certificate of Service for the Acknowledgment Order noted that the Order had been mailed to Moore at 396 Edison Street. Plaintiff's Exh. 13 at 6. Although Laity's September 27, 2000 request for a hearing before an EEOC administrative judge did not indicate an address for Moore, Supplemental Record at 32, the Department sent its response to AJ Licht at the EEOC District Office in New York City on January 25, 2001, and mailed copies of the response to Moore at 396 Edison Street, and Laity at 43 Mosher Street as stated in the Department's response's certificate of service. Plaintiff's Exh. 14 at 3. After receiving the Department's response, on February 2, 2001, Laity testified he informed the EEOC in writing, inter alia, of a new address for Moore at 77 Humber Avenue, Buffalo, New York ("77 Humber Avenue"), and that Moore had no objection to the Department's proposed witnesses, Plaintiff's Exh. 1, Tr. I at 81-83; Laity mailed a copy of this statement to Richard Billger, the Department's representative at that time, at the hospital which was located in Billger's file. Joint Exh. 1, Exh. A.
Because the EEOC's New York District Office had been located in the World Trade Center, following the September 11, 2001 attack, Laity telephoned AJ Licht at the EEOC's new district office at Whitehall Street to inquire about the status of Moore's hearing file and orally informed AJ Licht of Moore's new 77 Humber Avenue address. Tr. I at 83-85. According to Laity, AJ Licht told Laity that he had preserved Moore's file, and that Laity should confirm Moore's new address to AJ Licht in writing. Tr. I at 78. However, Laity testified that although he sent such a confirmation letter to AJ Licht at that time, Laity could not produce a copy of the letter nor confirm its receipt had been acknowledged by the EEOC New York District Office. Tr. I at 85. Because Moore was then scheduled to commence serving a state prison sentence, at Laity's request, the EEOC delayed action on Moore's case during the period of Moore's incarceration, which began in early 2002, until Moore's release in late 2003. Tr. II at 144-45; Plaintiff's Exh. 15; Incarceration Stipulation. Laity did not advise the EEOC of Moore's place of incarceration during this period. Tr. II at 282. Approximately two years later, in anticipation of Moore's release, Laity requested, on December 3, 2003, that the EEOC schedule the hearing before an AJ on the EEO Complaint as Laity had earlier requested. Tr. I at 145; Plaintiff's Exh. 15.
On December 6, 2003, AJ Kevin J. Berry, an EEOC administrative judge to whom Moore's case had been reassigned ("AJ Berry"), Tr. I at 144; Tr. II at 356, issued a Notice of Intent to Issue Decision Without a Hearing ("the Notice of Intent") on the EEO Complaint. Tr. I at 84-87; Plaintiff's Exh. 2. Acting on Moore's behalf, Laity filed, on December 26, 2003, a Response to Notice of Intent to Issue Decision Without a Hearing ("Response to Notice of Intent"). Tr. I at 89; Plaintiff's Exh. 3. Because the Notice of Intent indicated it had been mailed by the EEOC New York District Office to Moore at 396 Edison Street, Laity noted, using a blue highlighter, in the certificate of service Laity attached to the Response to the Notice of Intent, that Moore's correct mailing address was at 77 Humber Avenue. Tr. I at 89-93; Plaintiff's Exh. 3 at 12.
On January 8, 2004, AJ Berry issued a decision dismissing Moore's EEO Complaint. Tr. I at 100-03; Plaintiff's Exh. 4 ("the AJ Berry Decision"). The EEOC's New York District Office mailed a copy of the AJ Berry Decision to Moore at 396 Edison Street and Laity at 43 Mosher Drive. Tr. I at 101; Plaintiff's Exh. 4 at 6. By letter dated January 15, 2004, Laity wrote to AJ Berry, Plaintiff's Exh. 5, with a copy to Billger, stating that, at that time, Moore's correct address was 77 Humber Avenue. Plaintiff's Exh. 5; Tr. I at 101. Laity received no acknowledgment that his letter to AJ Berry had been received, Tr. II at 305, and no copy of Laity's letter to AJ Berry was found in Billger's file. Tr. I at 169, 220; Joint Exh. 1. Laity was then aware that any appeal of the AJ Berry Decision was to the OFO in Washington, D.C., Tr. II at 292, but Laity did not send a copy of the letter to the OFO, id, nor was a copy included in the file for Moore's EEO Complaint before AJ Berry, Tr. I at 168-69, which was later transmitted to the OFO in connection with Moore's appeal. The AJ Berry Decision advised Moore, as a complainant who may intend to appeal to the OFO, that he may wish to consult EEOC Management Directive MD-110 which recommends complainants use EEOC Form 573 in filing an appeal to the OFO. Plaintiff's Exh. 4 at 4; Tr. I at 237.*fn11
On Moore's behalf, Laity appealed the AJ Berry Decision to the OFO on March 9, 2004. Tr. I at 115; Plaintiff's Exh. 6 at 1. In the appeal document, prepared by Laity, Laity noted that the record on appeal should include Moore's Response to the Notice of Intent, which would have also included Laity's certificate of service noting Moore's new address at 77 Humber Avenue, Tr. I at 110-13; Plaintiff's Exh. 6 at 3-4; Facts, supra, at 11, however, the appeal document submitted to the OFO challenging the AJ Berry Decision, as prepared by Laity, made no reference to Moore's address at 77 Humber Avenue. Tr. I at 209; Tr. II at 307. The appeal file relating to the AJ Berry Decision forwarded to the OFO did not include Moore's Response to the Notice of Intent, Tr. I at 183; Tr. I at 216.
That such records did not become part of Moore's appeal file before the OFO was the result of an apparent oversight by AJ Berry in failing to send a copy to the Department's Office of Employment Discrimination Complaint Adjudication ("OEDCA"). Tr. I at 216-18. The letter from OFO acknowledging Moore's appeal, which at that time was not required to be sent to a representative such as Laity, reminding the complainant appellant to keep the OFO informed of a current mailing address, was sent to Moore at 396 Edison Street, but, because of an administrative policy at the time, may not have been sent to Laity. Tr. I at 235-37. The OFO does not receive appeal documents directly from an EEOC administrative judge, Tr. I at 220; as regards any appeals to the OFO involving job discrimination claims against the Department, such documents are assembled by the Department's OEDCA. Tr. I at 149, 212, 218.
Instead of mailing his decision dismissing Moore's EEO Complaint to the OEDCA as required, Tr. I at 186, 188, AJ Berry mailed a copy only to Billger, which was not part of the "normal... process," Tr. I at 157. Upon receiving the AJ Berry Decision, Billger apparently "stuck it in a folder in his [desk] drawer, and... retired." Tr. I at 157. In preparing the OGC's response to Moore's appeal, the document was later retrieved and forwarded to the OGC. Id. at 175. Upon receiving notice of Moore's appeal from the OFO, the OGC requested Moore's file from the OEDCA, Tr. I at 155-56, but as the AJ Berry Decision had not been filed by AJ Berry with the OEDCA, the OEDCA only had a copy of the Department's investigative file on Moore's EEO complaint, but not the AJ Berry Decision, Tr. I at 156, nor the Response to the Notice of Intent, Plaintiff's Exh. 3, or Laity's letter of January 15, 2004, Plaintiff's Exh. 5, advising AJ Berry of Moore's 77 Humber Avenue address. Tr. I at 182-83.
Upon docketing an appeal from an EEOC administrative judge's decision, the OFO requires the agency involved, here the Department, to assemble the complainant's file by sending the agency a checklist directing the agency to transmit to the OFO all documentation submitted by the parties to the administrative judge. Tr. I at 198-200, 212, 217-18; Defendant's Exh. A; MD-110. The OGC, in complying with this request, did not attempt to obtain all of the papers filed with AJ Berry, Tr. I at 200, nor did the OGC request copies from Laity, id. at 200-01. However, the OFO guidelines for assembling the appeal file require only that the agency involved in the EEO complaint (the Department in this case) submit documents in its, the OEDCA's, file, and do not require the agency to make inquiries and obtain documents not included in the OEDCA's file that may then remain lodged with the administrative judge whose decision is being appealed. Tr. I at 202.
In this case, after receiving Moore's appeal, the OFO did not request the OGC obtain copies of Moore's Response to the Notice of Intent, nor the Department's response to the Notice of Intent, which were therefore not included in Moore's appeal file for review by the OFO. Tr. I at 203. McCallum acknowledged she failed to thoroughly investigate the matter by inquiry to AJ Berry in order to obtain and forward to the OGC all of the documents in his file, presumably including Plaintiff's Exh. 5, if it was included in AJ Berry's file, and the Response to the Notice of Intent, Plaintiff's Exh. 3. Tr. I at 200. Had these documents been transmitted by AJ Berry, or the OGC, to the OEDCA and thereby provided to the OFO, according to McCallum, both the OGC and OFO would have learned of Moore's address at 77 Humber Avenue. Tr. I at 188. The evidence does not explain why, as part of the OFO's consideration of Moore's appeal, OFO staff attorneys did not seek to review the Response to the Notice of Intent, despite the fact it was referenced in Moore's appeal document, which contained Moore's new address in the certificate of service, and request the OGC to obtain it, but they were not required to do so. Plaintiff's Exh. 3 at 12, Tr. I at 245-47.
Nor did Laity elect to use EEOC Form 573, which the EEOC recommended, but at that time did not require, Tr. I at 210, to be used by complainants in taking appeals to the OFO; the form directs complainants who appeal to the OFO to include their current mailing address on the form. Defendant's Exh. D at 1; Tr. I at 243. In the absence of a final agency decision by the Department, based on the AJ Berry Decision that dismissed Moore's EEO Complaint in the Department's favor, no Form 573 was included with a final agency decision by the Department to Moore or Laity. Tr. I at 243. Laity stated he would not have used the Form 573 in filing Moore's OFO appeal if it was not then required. Tr. II at 303. Because he expected the OFO to know of Moore's address at 77 Humber Avenue, based on Moore's November 27, 1998 appeal to the OFO of Moore's prior unsuccessful February 27, 1998 appeal to the MSPB, Tr. II at 313, as well as Laity's attempts to inform the EEOC New York District Office of this address, specifically through Plaintiff's Exhs. 1, 3, and 5, Laity did not include Moore's 77 Humber Avenue address in the 2004 appeal documents, Plaintiff's Exh. 6, he filed on Moore's behalf with the OFO on March 9, 2004 challenging the AJ Berry Decision. Tr. II at 295-97; 308; 315-17. The Department's response to Moore's appeal was filed on July 9, 2004, and a copy mailed to Moore at 396 Edison Street the most recent address for Moore then on file with the Department, Tr. I at 158-59, which was not returned by the U.S. Postal Service as undeliverable. Tr. I at 160.
Because Moore's March 9, 2004 appeal document, prepared and filed by Laity with the OFO did not include a mailing address for Moore, for the OFO's use in recording and processing Moore's appeal, a search by the OFO of its records to locate such an address revealed Moore's 1999 interlocutory appeal to the OFO of the 1998 MSPB ruling dismissing Moore's mixed-case claim which indicated 396 Edison Street as Moore's then mailing address. Tr. I at 209-10; AUSA Roach Letter II ¶ 4; AUSA Roach Letter III at 1. In the absence of any prior record of a mailing address for Moore, such as the 396 Edison Street address, that could then be located in its files, the OFO would have contacted Laity to obtain such information. Tr. II at 214-15. Based on the address information for Moore then located in its files, mailing labels, prepared by the OFO staff -- 396 Edison Street for Moore, 43 Mosher Drive for Laity, and the OGC's Washington office address for the OGC -- were used by the OFO to mail copies of the OFO's denial, the OFO issued on June 8, 2005, Plaintiff's Exh. 7, of Moore's appeal. Tr. I at 225-26.
Because of the problems Laity's encountered with the EEOC New York District Office's failure to change Moore's mailing address to 77 Humber Avenue in accordance with Laity's attempts to notify the EEOC New York District Office and AJ Berry of this address for Moore prior to his OFO appeal, Laity assumed Moore had not received a copy of the OFO's June 8, 2005 decision denying Moore's appeal, Plaintiff's Exh. 7, Tr. II at 311-12, but, because Laity, as Moore's representative, had up to that time received, all of the EEOC's documents issued by it in Moore's case, including the OFO June 8, 2005 denial of Moore's appeal, Laity did not think it was necessary to advise the OFO directly that a copy of its June 8, 2005 decision may not, but should, have been mailed to Moore at 77 Humber Avenue. Tr. II at 312. Laity was aware of the EEOC regulation requiring complainants, like Moore, to keep the EEOC informed of changes in the complainant's address. Tr. II at 286.
By papers filed with the OFO on July 13, 2005, Laity requested reconsideration of its denial of Moore's appeal. Plaintiff's Exh. 8 ("Request for Reconsideration"). Tr. I at 121, 123, 223. As with Laity's March 9, 2004 appeal documents to the OFO of the AJ Berry Decision, the Request for Reconsideration filed by Laity with the OFO did not include 77 Humber Avenue as Moore's then correct mailing address, nor any other address for Moore. Tr. I at 224; Tr. II at 313. The OFO denied Moore's Request for Reconsideration on September 8, 2005 ("the denial" or "the OFO's denial"), Plaintiff's Exh. 9, and again, in the absence of any more recent address information for Moore, relying on the information as previously available to it and located in its records, mailed copies of the denial to Moore at 396 Edison Street, Laity at 43 Mosher Drive, and the OGC in Washington, D.C., on the same day, September 8, 2005, using another set of pre-printed mailing labels that had been prepared by the OFO staff upon receiving the Request for Reconsideration using the same procedures that it used to process Moore's appeal. Tr. I at 225-27. The copy of the denial OFO mailed to the OGC was found in the OGC's file along with the related mailing envelope, which included the preprinted label prepared by the OFO staff and addressed to the OGC, post-marked September 8, 2005. Tr. I at 226; Defendant's Exh. A at 8. As well, a copy of OFO's June 8, 2005 dismissal of Moore's appeal was also found in the OGC's file along with the preprinted address label. Defendant's Exh. A at 33. No mail to Moore or Laity from the OFO since 2002 was returned to the OFO as undeliverable by the U.S. Postal Service. Tr. I at 225-26. Notwithstanding Laity's prior attempts, as stated by Laity, to inform AJ Berry of Moore's address at 77 Humber Avenue, the OFO maintained that under the "continuing requirement" Moore was obliged to keep the OFO "apprised of [his] current address." Tr. I at 249.
In response to Moore's question, sometime in February 2006, to Laity regarding the status of his appeal to the OFO, Tr. II at 270, Laity sent a letter dated February 16, 2006, to the OFO inquiring as to the status of Moore's appeal, Tr. II at 274, Plaintiff's Exh. 10, and eventually learned from the OFO in a phone call with an OFO attorney on July 24, 2006, of the OFO's denial of Moore's Request for Reconsideration, Tr. II at 329. A "cc" at the foot of the letter, indicated a copy of it had been sent to Moore at 77 Humber Avenue. Plaintiff's Exh. 10. At Laity's telephonic request to an OFO attorney on July 24, 2006, the OFO mailed a copy of the denial to Laity at 43 Mosher Drive which was received by Laity on August 7, 2006. Tr. I at 124, 131. The OFO also mailed on August 4, 2006, a copy of the denial to ...