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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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