APPELLANT, v. WILLIAM S. COHEN, SECRETARY, DEPARTMENT OF DEFENSE, (DEFENSE FINANCE AND ACCOUNTING SERVICE), AGENCY. Request No. 05970596 Appeal No. 01961202 July 30, 1998 DECISION ON REQUEST FOR RECONSIDERATION INTRODUCTION On March 11, 1997, Appellant (hereinafter referred to as appellant) initiated a request to the Equal Employment Opportunity Commission (Commission) to reconsider the decision in Appellant v. William J. Perry, Secretary, Department of Defense (Defense Finance and Accounting Service), EEOC Appeal No. 01961202 (February 4, 1997), received by appellant on February 11, 1997. EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c) (1); the previous decision involved an erroneous interpretation of law, regulation, or material fact, or a misapplication of established policy, 29 C.F.R. §1614.407(c) (2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c) (3). For the reasons set forth herein, appellant's request is denied. ISSUE PRESENTED The issue presented herein is whether the previous decision properly affirmed the agency's dismissal of appellant's complaints for failure to state a claim. BACKGROUND The record in this case reveals that appellant, an employee with the Department of Defense, Defense Commissary Agency (DCA), received EEO counseling from the Department of the Army in conjunction with complaints filed against the Army's Criminal Investigation Division (CID), DCA, and the Defense Finance and Accounting Service (hereinafter referred to as the agency or DFAS). Appellant's allegations concerned a CID investigation of his travel vouchers, and the agency's subsequent debt collection action and garnishment of his pay. Appellant filed two undated formal complaints with regard to the agency's actions. [FN1] In its final decision dated October 23, 1995, the agency dismissed appellant's complaint for failure to state a claim. The agency asserted that appellant was not an employee or applicant for employment. The previous decision affirmed the final agency decision. In his request for reconsideration, appellant reiterated that he is employed by the Department of Defense, stating that his complaints concerned actions of the agency with regard to the garnishment of his pay which were discriminatory based upon his race/color (black). The agency countered that appellant's request did not meet the criteria for reconsideration. ANALYSIS AND FINDINGS As discussed above, the Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that any of the criteria of 29 C.F.R. §1614.407(c) is met. In order for a case to be reconsidered, the request must contain specific information which meets the requirements of this regulation. It should be noted that the Commission's scope of review on a request to reconsider is limited. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). After a careful review of the previous decision, appellant's request for reconsideration, and the entire record, the Commission finds that appellant's request fails to meet the criteria in 29 C.F.R. §1614.407(c). The Commission initially notes that the agency erred in finding that appellant was not an employee or applicant for employment because he was employed by DCA, since both DFAS and DCA are components of the Department of Defense. Nevertheless, the Commission finds that the complaint was properly dismissed for failure to state a claim within the meaning of the EEOC Regulations. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. § 1614.103. To establish that he is aggrieved within the context of 29 C.F.R. § 1614.103, appellant must allege, first of all, that he has been subjected to discrimination or retaliation of a type prohibited by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq; or §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment of the agency. 29 C.F.R. §1614.103(c). After a thorough review of the record, the Commission finds that appellant's complaint is a collateral attack upon the CID investigation. Specifically, the actions complained of ultimately are inextricably intertwined with the findings of the CID, and were taken in response to the CID report. The Commission has previously affirmed the Department of the Army's dismissal of appellant's complaint against the CID, stating that it would not entertain a collateral attack on the investigation. Appellant v. Department of the Army, EEOC Appeal No. 01944770 (April 5, 1995), request for reconsideration denied, EEOC Request No. 05950571 (September 26, 1996). Accordingly, the Commission finds that appellant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a), and will deny appellant's request for reconsideration. CONCLUSION After a review of appellant's request for reconsideration, the agency's response thereto, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. § 1614.407(c) (2), and it is therefore the decision of the Commission to DENY appellant's request. The decision in EEOC Appeal No. 01961202 (February 4, 1997) remains the Commission's final decision. There is no further right of administrative appeal on a decision of the Commission on this Request for Reconsideration. STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION RIGHT TO FILE A CIVIL ACTION (P0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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: Frances M. Hart Executive Officer Executive Secretariat FN1. The Commission previously remanded the matters so that appellant could provide evidence showing that he filed complaints against the agency. Appellant v. Department of Defense, EEOC Appeal Nos. 01951338 & 01951339 (April 5, 1995).