Francis A. Morlino - Page 17

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                    3.  Lack of Flexibility                                           
               Petitioner argues:  Mr. O’Shea “did not act with flexibility           
          but with a clear predisposition toward an inflexible and                    
          expeditious determination of petitioner’s matter.”  While it is             
          true that Mr. O’Shea set, and stuck to a deadline of September 2,           
          2003, and told Mr. Burke that he would not extend that deadline,            
          the facts in evidence hardly lead to the conclusion that Mr.                
          O’Shea was inflexible.  Indeed, he had twice before established             
          due dates for the requested information but, when petitioner                
          failed to comply, extended those due dates.  Moreover, there is             
          no evidence that when the September 2, 2003, deadline was set Mr.           
          Burke made any protest or that, thereafter, as the deadline                 
          approached, he or petitioner asked for any extension of the                 
          deadline.  In fact, Mr. O’Shea’s records show no contact with Mr.           
          Burke until September 29, 2003, when Mr. Burke’s secretary called           
          Mr. O’Shea to ask if any more information was needed.  She was              
          told by Mr. O’Shea that the information had been due on September           
          2, 2003, and the case had been closed (and, indeed, the notice of           
          Mr. O’Shea’s determination was mailed to petitioner 4 days                  
          later).  We do not find that Mr. O’Shea was inflexible.  While he           
          may have been predisposed to an expeditious determination of                
          petitioner’s matter, we see nothing wrong with that, given the              
          facts before us.                                                            

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