The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM O. WAGONER, DOCKET NUMBERS 1
Appellant, CH-0752-09-0702-I-1
CH-0752-13-0546-I-1
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: October 9, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Steven Sams, Esquire, Fishers, Indiana, for the appellant.
Lana S. Johnson, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant filed a petition for review of the initial decision in his most
recent removal appeal, MSPB Docket No. CH-0752-13-0546-I-1 (Wagoner III),
1
We are joining these interrelated cases, see 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36,
because joinder will expedite the processing of these cases and will not adversely affect
either party, see As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 12 (2000).
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
which dismissed the appeal as untimely on the grounds that relitigation of the
timeliness of the appeal was barred under the doctrine of collateral estoppel.
Upon review, the Office of the Clerk of the Board notified the appellant that,
because the petition included argument relating to the initial decision in MSPB
Docket No. CH-0752-09-0702-I-1 (Wagoner II), the Board also would consider
the submission as a petition for review in that case. Generally, we grant petitions
such as these 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, 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 in Wagoner III. 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). For the reasons set forth below, the appellant’s petition for
review in Wagoner II is DISMISSED as untimely filed without good cause
shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 The agency removed the appellant for unacceptable conduct from his
position as a clerk, effective July 3, 2008. Wagoner III, Initial Appeal File
(IAF-III), Tab 11 at 17-20. The appellant filed a removal appeal with the Board
in October 2008, which was dismissed without prejudice. See MSPB Docket
No. CH-0752-09-0089-I-1 (Wagoner I), Initial Appeal File, Tab 19, Initial
3
Decision (ID-I); see also IAF-III, Tab 11 at 28-31. In the analysis section of the
decision, the administrative judge ordered that the appellant “must refile” his
appeal within 30 days from the date of the final disposition of the criminal charge
related to his removal. ID-I at 2. However, in the decision section, the
administrative judge stated that the appellant “may refile” his appeal within 30
days following the final criminal disposition but “must in any event refile the
appeal by July 1, 2009.” ID-I at 2.
¶3 On June 13, 2009, the appellant refiled his appeal of the 2008 removal, and
referenced an arbitration award dated May 21, 2009, finding that he had been
removed for just cause. Wagoner II, Initial Appeal File (IAF-II), Tab 1; see
IAF-II, Tab 4. On October 9, 2009, the administrative judge dismissed the appeal
as untimely filed. IAF-II, Tab 11, Initial Decision (ID-II). The administrative
judge found that because the criminal matter concluded on March 23, 2009, when
the court entered its sentence, the appellant was required to refile his appeal by
April 22, 2009, and was untimely in refiling by 7½ weeks. ID-II at 2-3. The
administrative judge found no good cause for waiving the time limit, noting that
the record indicated that the appellant had waited to refile the appeal until after
the conclusion of his grievance of the removal action and that his argument
concerning his wife’s medical condition was unpersuasive. ID-II at 3-5.
¶4 The appellant did not request review of that decision by the Board or the
U.S. Court of Appeals for the Federal Circuit, and the decision became final on
November 13, 2009. See ID-II at 6. Instead, more than 3½ years later, on
May 23, 2013, he filed a new appeal of the 2008 removal. 3 Wagoner III, Initial
3
In the interim, the appellant filed an appeal of the Office of Personnel Management’s
determination that he was ineligible for retirement benefits, and the Board affirmed the
agency’s decision. Wagoner v. Office of Personnel Management, MSPB Docket
No. CH-0831-11-0115-B-1, Final Order (July 10, 2012). The Federal Circuit affirmed
the final order of the Board on April 8, 2013. Wagoner v. Office of Personnel
Management, 524 F. App’x 630, 633-34 (Fed. Cir. 2013). The court found that the
Board was entitled to rely on the appellant’s removal for misconduct as an established
fact in the retirement case because he had not challenged the dismissal of his earlier
4
Appeal File (IAF-III), Tab 1 at 1-4, Tab 4. The administrative judge issued an
order to show cause why the appeal should not be barred by the October 9, 2009
decision in Wagoner II under the doctrine of res judicata. IAF-III, Tab 2. In
response, the appellant argued that res judicata could not be applied to his appeal
because the case has not been litigated on the merits. IAF-III, Tab 10. The
agency filed a motion to dismiss the appeal, arguing that the appellant was
collaterally estopped on the issue of the timeliness of his appeal. IAF-III, Tab 11
at 4-11. The administrative judge dismissed the appeal, finding that the appellant
was collaterally estopped from relitigating the issue of the timeliness of the
appeal of the 2008 removal because that issue had been fully adjudicated in
Wagoner II. IAF-III, Tab 17, Initial Decision (ID-III) at 2-3.
¶5 The Board granted the appellant’s three requests for extensions of time to
file a petition for review. Wagoner III, Petition for Review (PFR-III) File,
Tabs 1-4, 6-7. In his petition for review, filed on January 21, 2014, the appellant
argued that the doctrine of res judicata should not apply to the appeal because
there has been no Board decision on the merits of the case, but he did not address
the case law and explanation of the collateral estoppel doctrine in both the initial
decision and the agency’s motion to dismiss. PFR-III File, Tab 8 at 3. The
appellant further argued that his June 13, 2009 appeal was timely filed because
the March 2, 2009 dismissal order stated that he “may refile the appeal within
[30] days” of the resolution of the criminal case. Id. at 3-4; ID-I at 2.
removal appeal (i.e., Wagoner II). Id. at 633. We note that the appellant filed the most
recent appeal approximately 1 month after the court’s decision. IAF-III, Tab 1. The
administrative judge in Wagoner III clarified with the appellant that the adverse action
he is appealing is the 2008 removal from employment, not the retirement eligibility
determination. IAF-III, Tab 4.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The Wagoner II petition for review is untimely filed by 3½ years with no good
cause shown for the delay.
¶6 The Board has considered the petition for review in Wagoner III as a
petition for review in Wagoner II because the petition included argument related
to the initial decision in Wagoner II. PFR-III File, Tab 2 at 1. The Board
notified the appellant that the time limit set forth in the Wagoner II initial
decision for filing a petition for review was November 13, 2009, and thus the
January 21, 2014 petition in Wagoner II was untimely. Id. at 1-2. The
acknowledgment letter instructed the appellant that the Board’s regulation
under 5 C.F.R. § 1201.114(g) requires that a petition for review that appears to be
untimely be accompanied by a motion to accept the filing as timely and/or waive
the time limit for good cause. Id.
¶7 To be timely, a petition for review generally must be filed within 35 days of
the date of the initial decision’s issuance. 5 C.F.R. § 1201.114(e). 4 The Board
will waive its filing deadline only upon a showing of good cause for the delay in
filing. 5 C.F.R. §§ 1201.12, 1201.114(f). To establish good cause for the
untimely filing of an appeal, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board should
consider the length of the delay in every good cause determination. Walls v.
Merit Systems Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994).
¶8 The appellant filed a motion to accept the petition for review as timely,
arguing only that the June 13, 2009 appeal in Wagoner II was timely refiled under
his interpretation of the dismissal without prejudice order. Wagoner II, Petition
for Review (PFR-II) File, Tab 3 at 2. However, the appellant requested no review
of the initial decision in Wagoner II by the Board or the U.S. Court of Appeals
4
Although the Board has amended its regulations since 2009, those amendments do not
affect the outcome in these appeals.
6
for the Federal Circuit but waited over 3½ years to file a new appeal and
subsequent petition for review of the 2008 removal. Thus, we find that the
petition for review was filed untimely, and the appellant has failed to show good
cause for waiving the timeliness requirement.
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review in Wagoner II. The initial decision remains the final
decision of the Board regarding the timeliness of the removal appeal in
Wagoner II.
The Wagoner III appeal is barred by the doctrine of collateral estoppel.
¶10 At issue is whether the appellant is collaterally estopped, in Wagoner III,
from relitigating the timeliness of his appeal of the 2008 removal. 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 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. 100 M.S.P.R.
146, ¶ 15 (2005). The dismissal of a Board appeal on timeliness grounds can be
given collateral estoppel effect if the elements of that doctrine are established.
Allen v. Office of Personnel Management, 77 M.S.P.R. 212, 221 n.5 (1998) (final
decisions in chapter 75 appeals that had been dismissed on timeliness grounds
were not relitigated under the doctrine of collateral estoppel insofar as the
appellants did not present different bases for a finding of good cause for the
delayed filing); see Nebblett v. Office of Personnel Management, 73 M.S.P.R.
7
342, 347 & n.2 (1997) (finding that the administrative judge’s dismissal of a prior
appeal on the basis of untimeliness, which became the Board’s final decision, was
a collateral estoppel bar to a subsequent appeal of the same Office of Personnel
Management reconsideration decision), aff’d, 152 F.3d 948 (Fed. Cir. 1998)
(Table).
¶11 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 timeliness of the appeal of the 2008 removal. First, the issues
previously adjudicated, i.e. whether the appellant had timely filed or had good
cause for the untimely filing of an appeal of the 2008 removal, are materially
identical to the dispositive issues in the present action. The appellant has not
alleged any new or previously unavailable basis for finding good cause. See
Allen, 77 M.S.P.R. at 221 n.5. Second, the material timeliness issues were
actually litigated in the prior action. The administrative judge in Wagoner II
found that the appellant refiled the appeal almost 3 months after the conclusion of
the criminal matter, despite instructions to refile within 30 days and that the
appellant made no persuasive argument of good cause to waive the timeliness
requirements. ID-II at 2-5. Any appeal filed after the April 22, 2009 deadline
would be untimely, and the Wagoner III appeal was not filed until May 23, 2013.
IAF-III, Tab 1. The appellant has made no allegation of changed circumstances
or new evidence suggesting good cause for the substantial delay in filing the
appeal. 5 See Allen, 77 M.S.P.R. at 221 n.5. Third, the determination of
timeliness of the appeal was necessary to the resulting judgment in the prior
action, as the Board dismissed the appeal as untimely filed. Finally, the appellant
was a party to the earlier action and had a full and fair opportunity to litigate the
timeliness issue in the prior action. Thus, we find that all four elements of
5
Although not argued by the appellant, the intervening retirement decision and
adjudication do not constitute good cause for the delay in filing his appeal of the 2008
removal. See supra n.3.
8
collateral estoppel have been met in the present case, precluding the
readjudication of the timeliness of an appeal of the 2008 removal.
¶12 Despite any confusion regarding the administrative judge’s discussion of res
judicata in the context of issue preclusion, we note that the appellant received
clear notice of potential application of the doctrine of collateral estoppel from the
agency’s motion to dismiss and the initial decision. See ID-III; see also IAF-III,
Tabs 2, 11. Furthermore, although the initial decision thoroughly explained the
elements of collateral estoppel, IAF-III, Tab 17 at 2-3, the appellant’s petition for
review merely reargues that there had not been a decision on the merits of the
2008 removal appeal for the purposes of res judicata and that the Wagoner II
initial appeal had been timely filed, PFR-III, Tab 8 at 3-4.
¶13 Accordingly, having reviewed the record, we find no basis to disturb the
administrative judge’s finding that the doctrine of collateral estoppel precludes
the readjudication of the timeliness of the appeal of the appellant’s 2008 removal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
FOR MSPB DOCKET NO. CH-0752-13-0546-I-1
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).
9
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. Additional information about other courts of appeals can be found at
their respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 Merit Systems Protection Board
appellants before the Federal Circuit. 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.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
FOR MSPB DOCKET NO. CH-0752-09-0702-I-1
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.