The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES G. EVANS, DOCKET NUMBER
Appellant, DE-3443-14-0230-I-1
v.
DEPARTMENT OF VETERANS DATE: September 2, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
James R. Hefflin, Newport Beach, California, for the appellant.
Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found that he was collaterally estopped from relitigating the issue of whether he
was an “employee” with Board appeal rights under 5 U.S.C. chapter 75 and
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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as this one only when: 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
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. See 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, and based on the following points and
authorities, 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 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 In May 2011, the appellant filed an appeal to the Board concerning his
departure from federal service claiming involuntary disability retirement, which
the Board dismissed for lack of jurisdiction because the appellant was not an
employee with appeal rights. Evans v. Department of Veterans
Affairs, 119 M.S.P.R. 257, ¶¶ 2, 5-6 (2013). Almost 3 years later, the appellant
filed a “mixed case” appeal from an agency equal employment opportunity
decision issued in July 2011, dismissing his complaint of harassment/hostile work
environment and alleged constructive discharge concerning the same separation
from federal service. Initial Appeal File (IAF), Tab 1. The administrative judge
issued an order to show cause why the appeal should not be barred by the prior
Board determination, but the appellant did not address this issue in his responsive
pleading. IAF, Tabs 2, 4. The administrative judge dismissed the appeal for lack
of jurisdiction, finding that the appeal was precluded from being relitigated under
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the doctrine of collateral estoppel and that the Board otherwise lacked jurisdiction
over the appellant’s remaining discrimination claims. IAF, Tab 9, Initial
Decision (ID) at 4-5. On review, the appellant merely argues that the initial
decision was “wrongly decided,” without making any substantive legal arguments
concerning the administrative judge’s application of collateral estoppel. Petition
for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The threshold issue in the earlier case was whether the appellant was an
“employee” with Board appeal rights under 5 U.S.C. chapter 75. In the prior
appeal, the Board found that it did not have jurisdiction over the appellant’s claim
because he was not an “employee,” as defined by 5 U.S.C. § 7511.
Evans, 119 M.S.P.R. 257, ¶¶ 5-6. In the instant appeal, the administrative judge
found that the appellant was collaterally estopped from relitigating this same
issue. ID at 4-5.
¶4 Collateral estoppel, or issue preclusion, is appropriate when: (1) an 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 precluded was fully
represented in the prior action. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
(Fed. Cir. 1988). The Board clarified in McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶ 15 (2005), that the fourth prong requires that 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.
¶5 We conclude that the appellant has not shown error in the administrative
judge’s finding that the elements of collateral estoppel have been met in this case
regarding the Board’s jurisdiction over the appellant’s earlier claim and that he is
thus precluded from relitigating this issue. First, the issue previously
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adjudicated, the appellant’s appeal rights before the Board, is identical to that in
the present action. Second, the jurisdictional issue of the appellant’s appeal
rights concerning a chapter 75 adverse action was actually litigated in the prior
action. As discussed by the Board in the prior decision issued in March 2013,
positions that are excluded from the competitive service under a provision of
Title 38 are excluded from appeal rights and coverage under subchapter II of
chapter 75. 5 U.S.C. § 7511(b)(10); Evans, 119 M.S.P.R. 257, ¶ 6. Based on the
parties’ pleadings and the evidence in the record, the Board found that it was
undisputed that the appellant was a nurse appointed under 38 U.S.C. § 7401(1),
and thus he lacked the right to appeal chapter 75 adverse actions to the Board.
Evans, 119 M.S.P.R. 257, ¶ 6. Third, the determination on the appellant’s appeal
rights to the Board was necessary to the resulting judgment in the prior action, as
the Board found that the appeal was outside its purview because the appellant
was not an “employee.” Finally, the appellant was a party to the earlier action
and had a full and fair opportunity to litigation the jurisdictional issue in the
prior action.
¶6 Thus, we find that all four elements of collateral estoppel have been met in
the present case, precluding the re-adjudication of the appellant’s right to appeal
a chapter 75 adverse action to the Board. We note that the appellant received
notice of potential issue preclusion from the administrative judge’s order to show
cause why the Board had jurisdiction over his appeal but failed to address this
issue in his responsive pleading. See IAF, Tabs 2, 4. Further, although the initial
decision thoroughly explained the elements of collateral estoppel, ID at 4-5, the
appellant’s vague petition for review fails to present any meaningful argument on
this issue, PFR File, Tab 1. We also find that the administrative judge correctly
found that the Board lacks jurisdiction over the remaining claims in the
appellant’s discrimination complaint. See ID at 4. The Board does not have
jurisdiction over discrimination claims absent an otherwise appealable action.
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See 5 U.S.C. § 7702(a)(1); Pridgen v. Office of Management and
Budget, 117 M.S.P.R. 665, ¶ 7 (2012).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.