The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IONA CALHOUN, DOCKET NUMBER
Appellant, DC-1221-14-0758-W-1
v.
GENERAL SERVICES DATE: July 8, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Iona Calhoun, Silver Spring, Maryland, pro se.
Floyd Allen Phaup, II, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal based on the doctrine of collateral estoppel. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. However, we VACATE the initial decision
dismissing this appeal as barred by the doctrine of collateral estoppel and instead
DISMISS the appellant’s claims that the agency failed to select her for a GS-14
position and delayed her promotion to a GS-12 position for lack of jurisdiction.
BACKGROUND
¶2 Prior to her 2005 retirement from federal service, the appellant was
employed as a GS-13 Management Analyst with the agency. Initial Appeal File
(IAF), Tab 6 at 19. She began working at the agency in 1977, following a
transfer from the Office of Management and Budget (OMB). 2 IAF, Tab 12 at 4.
¶3 In 2007, the appellant filed a complaint against the agency in the U.S.
District Court for the District of Columbia in which she raised claims of
discrimination and reprisal. IAF, Tab 13 at 16-32. The court granted the
agency’s motion for summary judgment of these claims. See Calhoun v.
Prouty, 643 F. Supp. 2d 87, 92-97 (D.D.C. 2009). The appellant filed an appeal
2
During her employment with the agency, the appellant filed several equal employment
opportunity (EEO) complaints alleging reprisal and discrimination based on race. IAF,
Tab 13 at 11. In 1993, she entered into a settlement agreement with the agency
resolving prior EEO complaints. Id. at 11-14. Pursuant to the 1993 settlement
agreement, the appellant received a promotion to a GS-13 level position and back pay
retroactive to 1989. Id.
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of the district court’s decision with the U.S. Court of Appeals for the District of
Columbia, which affirmed the summary judgment finding on all but one claim
relating to her nonselection for a GS-14 position in 2000. See Calhoun v.
Johnson, 632 F.3d 1259 (D.C. Cir. 2011). On remand, the parties entered into a
settlement agreement resolving that claim. IAF, Tab 13 at 49-57. Pursuant to the
settlement agreement, which the parties signed in 2012, the appellant received a
promotion to a GS-14 level position retroactive to 2001. Id. at 50. The
settlement agreement contained a dismissal with prejudice of the remanded
nonselection claim and a global release of all claims against the agency which
were brought, or could have been brought, by the appellant. Id. at 51-52.
¶4 In 2013, the appellant filed a complaint with the Office of Special Counsel
(OSC) in which she alleged that the agency denied her merit promotions between
1977 and 2005 because she had filed an EEO class action complaint in 2001, and
a grievance with the Federal Labor Relations Authority in 2002. IAF, Tab 6 at
19-30. After OSC advised the appellant that it had decided to close her case,
IAF, Tab 1 at 4, she filed the instant individual right of action (IRA) appeal with
the Board, IAF, Tab 1. In her appeal, the appellant contends that the agency
delayed her promotion to the GS-12 level for 11 months when she was transferred
there from OMB in 1977. IAF, Tab 1 at 1. She further alleges that the agency
refused to select her for a GS-14 level position. Id. The appellant asserts that the
agency’s actions constituted discrimination and a denial of her civil rights. Id. at
2.
¶5 The administrative judge issued orders advising the appellant of the
requirements for establishing Board jurisdiction over an IRA appeal and
explaining how she could show that her appeal was not barred by collateral
estoppel or res judicata. IAF, Tabs 3, 11. After providing the parties with the
opportunity to respond to the orders, and without holding a hearing, the
administrative judge issued an initial decision dismissing the appeal on the basis
of collateral estoppel. IAF, Tab 15, Initial Decision (ID).
4
¶6 The appellant timely filed a petition for review and a supplement to her
petition. Petition for Review (PFR) File, Tabs 1, 2. On review, the appellant
reiterates her contention that the agency denied her merit promotions between
1977 and 2005 based on her protected whistleblowing activity. PFR File, Tab 1
at 7. She alleges that the claims she has raised in her IRA appeal were not
addressed in prior settlement agreements or court decisions. Id. at 7, 9. The
agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal is not barred by collateral estoppel.
¶7 The Board applies collateral estoppel to determine whether a previous
adjudication of a jurisdictional issue precludes its relitigation. McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶¶ 15-20 (2005). 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 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 as one whose interests were otherwise fully represented in that
action. Id., ¶ 15; see also Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
(Fed. Cir. 1988)
¶8 Here, the threshold issue of whether the Board has jurisdiction over the
appellant’s claim that the agency denied her merit promotions in reprisal for her
whistleblowing activity was not previously litigated. Given that the threshold
issue in this proceeding is not identical to the ones previously litigated and
adjudicated, collateral estoppel does not bar the appeal. See Mercer v.
Department of Health & Human Services, 82 M.S.P.R. 211, ¶¶ 6-7 (1999)
(finding that collateral estoppel would not bar an appeal under chapter 75 if the
appellant’s status as a probationary employee was not decided in her prior appeal
5
of her termination, which was dismissed for lack of jurisdiction); McLaughlin v.
Department of the Navy, 76 M.S.P.R. 481, 484 (1997) (finding that collateral
estoppel did not apply where the jurisdictional issue in the first appeal was not
identical to that in the second appeal).
¶9 Accordingly, we vacate the administrative judge’s initial decision
dismissing the appeal on the basis of collateral estoppel. As discussed below,
however, we find that the appeal should be dismissed on other grounds.
The appellant’s claim that the agency failed to select her for a GS-14 position is
dismissed for lack of jurisdiction, based on the waiver provision of the 2012
settlement agreement.
¶10 The Board will consider a settlement agreement, even though it was reached
outside of a Board proceeding, to determine its effect on the Board appeal and
any waiver of Board appeal rights. Lee v. U.S. Postal Service, 111 M.S.P.R. 551,
¶ 4 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010). Such a waiver is valid if its
terms are comprehensive, freely made, and fair, and execution of the waiver did
not result from agency duress or bad faith. Id.
¶11 The appellant does not dispute that, in 2012, the parties executed a
settlement agreement in district court resolving her 2000 nonselection for a
GS-14 position. IAF, Tab 13 at 49-57. Rather, she contends on review that the
2012 settlement agreement does not encompass any of the claims she raises in her
Board appeal. PFR File, Tab 1 at 7, 9. We disagree.
¶12 The 2012 settlement agreement states, inter alia, as follows:
6. Release. This Stipulation provides for the full and complete
satisfaction of all claims which have been or could have been
asserted by plaintiff in the above-referenced civil action, . . . and
plaintiff agrees not to hereafter assert any claim or institute or
prosecute any civil action or other proceeding . . . with respect to any
event complained of therein . . . .
IAF, Tab 13 at 52 (emphasis added). While the terms of the settlement agreement
do not explicitly reference the Whistleblower Protection Act, we find that the
above-quoted language clearly informed the appellant that she was waiving all
6
claims that were raised in her civil action before the district court. See Landers v.
Department of the Air Force, 117 M.S.P.R. 109, ¶ 15 (2011) (finding that the
appellant waived her right under a settlement agreement to file a claim under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) even where the terms of the agreement did not specifically reference
USERRA). The appellant’s contention that the agency failed to select her for a
GS-14 level position is a claim that was raised in the context of her action before
the district court. We therefore find that the plain meaning of the settlement
agreement’s terms encompasses this claim, and that the appellant waived her right
under the agreement to raise this claim in an appeal before the Board. See
Lee, 111 M.S.P.R. 551, ¶ 7 (finding that a claim that arose prior to the execution
of a settlement agreement was waived under the agreement’s general release of all
employment claims).
¶13 We further find that the appellant’s waiver of Board appeal rights regarding
this claim is enforceable. Id., ¶ 8. The settlement agreement provided the
appellant with 21 days to consider its terms and advised her to consult with an
attorney prior to signing the agreement. IAF, Tab 13 at 51; see
Landers, 117 M.S.P.R. 109, ¶ 15. The agreement was signed both by the
appellant and her attorney, and stated that “[e]ach signatory to this Stipulation
represents and warrants that he or she is fully authorized to enter into this
Stipulation.” IAF, Tab 13 at 56. Moreover, the appellant does not dispute that
the settlement agreement was freely made, was fair, and was not the result of
agency duress or bad faith. See Lee, 111 M.S.P.R. 551, ¶ 9. Further, the
agreement reflects that the agency provided consideration to the appellant in
exchange for her waiver. IAF, Tab 13 at 49-51; see Lee, 111 M.S.P.R. 551, ¶ 9.
¶14 In sum, we find that the 2012 settlement agreement reached in the district
court proceeding encompassed the appellant’s claim that the agency failed to
select her for a GS-14 position, that she knowingly and voluntarily signed the
settlement agreement, that the appellant waived her Board appeal rights
7
concerning her failure to be selected for a GS-14 position, and that the waiver is
enforceable. 3 As a result, we dismiss this claim for lack of jurisdiction.
The appellant’s claim that the agency delayed her promotion to a GS-12 position
in reprisal for her whistleblowing activity is also dismissed for lack of
jurisdiction.
¶15 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8), or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). If the appellant
satisfies each of these jurisdictional requirements, she has the right to a hearing
on the merits of her claim. Kukoyi v. Department of Veterans Affairs, 111
M.S.P.R. 404, ¶ 10 (2009).
¶16 Here, the appellant has alleged that her protected whistleblowing activity
occurred in 2001 and 2002. Therefore, it could not have been a contributing
factor in the agency’s failure to timely promote her to a GS-12 level position 24
or 25 years later in 1977. IAF, Tab 6 at 19-30; see Rumsey v. Department of
Justice, 120 M.S.P.R. 259, ¶ 27 (2013) (disclosures made after the agency took
the personnel actions at issue cannot have been contributing factors).
Accordingly, we find that the appellant has failed to make a nonfrivolous
allegation that the Board has jurisdiction over her claim that the agency failed to
timely promote her to a GS-12 position in 1977. We thus dismiss her IRA appeal
3
Paragraph 5 of the settlement agreement expressly indicates that the U.S. District
Court for the District of Columbia will retain jurisdiction to enforce the terms of the
agreement. IAF, Tab 13 at 52.
8
for lack of jurisdiction. See Simmons v. Small Business
Administration, 115 M.S.P.R. 647, ¶¶ 13-14 (2011).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113. You have the right to request the United States
Court of Appeals for the Federal Circuit to review this final decision.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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.
9
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 about the United States 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, 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 your appeal to
the 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 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.