05a50237
12-10-2004
Wayne Wiggins, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Wayne Wiggins v. Department of Veterans Affairs
05A50237
.
Wayne Wiggins,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No.05A50237
Appeal No. 01A45464
Agency No. 200M-0554-2004101394
RESCISSION
Wayne Wiggins (complainant) timely requested reconsideration of the
decision in Wayne Wiggins v. Department of Veterans Affairs, EEOC
Appeal No. 01A45464 (November 4, 2004). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law; or (2) the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. See 29 C.F.R. � 1614.405(b).
On reconsideration, complainant's attorney argues that complainant
withdrew his appeal from the agency's final decision on the instant
complaint in a letter to the Commission dated October 8, 2004. Complainant
included a copy of the October 8, 2004 letter, which was not previously
included in the appeal file. The October 8, 2004 letter stated that:
� This is to inform you that I am withdrawing the appeal of my EEO
complaint, Case Number 200M-0554-2004101394, filed against the Department
of Veterans Affairs (VA). I have been advised that VA has accepted my
complaint in its entirety.�
The record therefore indicates that at the time the decision in EEOC
Appeal No. 01A45464 was issued on November 4, 2004, complainant's
appeal had already been withdraw pursuant to the October 8, 2004 letter
from complainant's attorney. Consequently, we find that, although the
Commission was unaware of complainant's October 8, 2004 withdrawal of
his appeal, it lacked jurisdiction to issue the decision in EEOC Appeal
No. 01A45464.
Accordingly, the decision in EEOC Appeal No. 01A45464 is RESCINDED.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 10, 2004
__________________
Date