Opinion

Terry Smith Jr v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jan 27, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERRY SMITH JR., DOCKET NUMBER

Appellant, CH-0714-23-0143-I-1

DEPARTMENT OF VETERANS DATE: January 27, 2025

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Veronica Harte , Esquire, and Michael I. Sheeter , Esquire, Dallas, Texas,

for the appellant.

Gary Levine , Esquire, Nicholas Peluso , Esquire, and Justine Fernandez ,

Esquire, Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the appellant’s removal under the provisions of 38 U.S.C. § 714.

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review. Except as expressly MODIFIED to apply the law of Illinois regarding

collateral estoppel, we AFFIRM the initial decision.

Here, the agency removed the appellant from his Police Officer position

based on two charges, conduct unbecoming and failure to meet position

requirements. Initial Appeal File (IAF), Tab 5 at 20. The administrative judge

sustained the charges, finding that the appellant was collaterally estopped from

relitigating the facts underlying his criminal conviction for Reckless Conduct.

IAF, Tab 20, Initial Decision (ID) at 11-12.

Though not raised by either party on review, we find that the administrative

judge mistakenly relied on the wrong standards for collateral estoppel.

ID at 12 n.5. We nonetheless find that, under the proper standards, the

requirements for collateral estoppel are satisfied in this case.

Under the Board’s standards for collateral estoppel, a party is barred from

relitigating an issue that was previously litigated if: (1) the issue is identical to

that involved in the prior action; (2) the issue was actually litigated in the prior

action; (3) the determination on the issue in the prior action was necessary to the

resulting judgment; and (4) the party against whom issue preclusion is sought had

a full and fair opportunity to litigate the issue in the prior action, either as a party

to the earlier action or one whose interests were otherwise fully represented in

that action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005).

However, in a case such as this, in which the prior action resulted in a criminal

conviction in state court, the Board must apply that state’s collateral estoppel

standards. Mosby v. Department of Housing and Urban Development ,

114 M.S.P.R. 674, ¶¶ 5-6 (2010) (applying District of Columbia collateral

estoppel standards). Accordingly, it is Illinois’s collateral estoppel standards that

govern in this appeal.

In Illinois, collateral estoppel applies when “(1) an issue decided in a prior

adjudication is identical with the one presented in the current litigation, (2) there

was a final judgment on the merits in the prior adjudication, and (3) the party

against whom estoppel is asserted was a party or in privity with a party to the

prior adjudication.” Givens v. City of Chicago, 2023 IL 127837, ¶ 48; Hope

Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 77. All the requirements for

the application of collateral estoppel are met in this case. The issue in the

criminal proceeding is identical to the issue presented in this appeal; there was a

final judgment in the prior adjudication; and the appellant was a party to the

criminal proceeding. We agree with the administrative judge that the appellant is

precluded from re-litigating the facts underlying his criminal conviction for

Reckless Conduct. ID at 12.

For the reasons stated in the initial decision, we find that the agency proved

its charges, nexus, and the reasonableness of the penalty. We also find that the

appellant failed to prove his affirmative defenses of race discrimination and a

violation of due process. Accordingly, we affirm the initial decision, which

affirmed the appellant’s removal under the provisions of 38 U.S.C. § 714.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following