Opinion

Neil Sleevi v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 29, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEIL SLEEVI, DOCKET NUMBER

Appellant, DC-4324-24-0485-I-1

DEPARTMENT OF HOMELAND DATE: January 29, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neil Sleevi , Platte City, Missouri, pro se.

Tae L. Kim , Esquire, Michelle McCluer , Esquire, and Sally Heuker ,

Esquire, Arlington, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

dismissed his appeal under the doctrine of res judicata. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 dismiss the appeal based on collateral estoppel rather

than res judicata, we AFFIRM the initial decision.

The administrative judge dismissed this appeal on the grounds that the

issues presented had already been decided by the Board and affirmed by the U.S.

Court of Appeals for the Federal Circuit. See Sleevi v. Merit Systems Protection

Board, No. 2021-1447, 2021 WL 2879045 (Fed. Cir. July 9, 2021) (affirming the

Board’s decision in Sleevi v. Department of Homeland Security, MSPB Docket

No. DC-4324-20-0767-I-1, which dismissed the appellant’s first USERRA appeal

based on the equitable defense of laches). 2 In reaching that conclusion, the

administrative judge relied on the doctrine of res judicata, which provides that a

valid, final judgment on the merits of an action bars a second action involving the

same parties or their privies based on the same cause of action. See Peartree v.

U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995).

The equitable defense of laches bars an action when an unreasonable delay in bringing

the action has prejudiced the party against whom the action is taken. Johnson v. U.S.

Postal Service, 121 M.S.P.R. 101, ¶ 6 (2014). The Board has acknowledged that the

doctrine of laches may apply as a defense to a USERRA claim. See id., ¶¶ 6-9 (2014)

(finding USERRA claim barred by laches). The party asserting laches must prove both

unreasonable delay and prejudice. Id., ¶ 6.

The appellant argues that the doctrine of res judicata is inapplicable

because the final decision in his previous appeal was not a decision on the merits.

Petition for Review File, Tab at 17. In this regard, we note that the U.S. Court of

Appeals for the Seventh Circuit has held that a dismissal based on laches does

constitute a final decision on the merits for purposes of applying res judicata. See

Smith v. City of Chicago, 820 F.2d 916, 919 (7th Cir. 1987) (citing McCrocklin v.

Fowler, 411 F.2d 580 (7th Cir. 1969)). However, to our knowledge, neither the

Board nor the Federal Circuit has addressed this question, which we do not

presently resolve.

Assuming arguendo that the final decision on the appellant’s previous

USERRA appeal does not have res judicata effect, we nonetheless find that the

appellant is collaterally estopped from challenging the Board’s previous

determination, affirmed by the Federal Circuit, that his USERRA claim was

barred by laches. Collateral estoppel, or issue preclusion, is appropriate when (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 of 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 as one whose interests were

otherwise fully represented in that action. Hau v. Department of Homeland

Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems

Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). We find that these elements

are satisfied as to the Board’s previous determination, affirmed by the Federal

Circuit, that the agency established the elements of laches. Because the appellant

is precluded from relitigating that issue, we conclude that laches likewise serves

as a defense to the instant appeal, which raises the same USERRA claim and was

filed at an even later date. Accordingly, we DISMISS the instant appeal. 3

We have considered the appellant’s remaining arguments and find that they are

without merit.

NOTICE OF APPEAL RIGHTS 4

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

Board’s 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).

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:

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.

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. 5 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