The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENYA K. HOLT, DOCKET NUMBER
Appellant, SF-0752-16-0129-I-2
v.
DEPARTMENT OF THE NAVY, DATE: January 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Mirch, Esquire, San Diego, California, for the appellant.
John William Torresala, Esquire, Camp Pendleton, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal based on one charge of conduct unbecoming a civilian
police officer arising from misconduct for which imprisonment may be
imposed—namely, that he engaged in sexual misconduct for which he was
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
arrested and charged. Because the appellant was convicted in a California state
court of forcible rape, the administrative judge found that collateral estoppel
precluded him from challenging the merits of the underlying misconduct. On
petition for review, the appellant argues that the administrative judge erred in
applying the Board’s case law regarding collateral estoppel, that he should have
applied the common law of California, and that the Board should stay his removal
until his criminal conviction has been fully litigated.
¶2 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 regulatio n
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
consider the new and material evidence that the appellant’s criminal conviction
has been fully litigated and to apply the common law of California regarding
collateral estoppel, we AFFIRM the initial decision.
¶3 The appellant asserts that the administrative judge should have applied the
common law of California to analyze whether he was collaterally estopped from
challenging his criminal conviction and the misconduct underlying the charge.
Petition for Review (PFR) File, Tab 1 at 4. The administrative judge applied the
Board’s doctrine of collateral estoppel to find that the appellant was estopped
from arguing that he did not engage in the disputed misconduct. Refiled Appeal
3
File, Tab 33, Initial Decision at 5-6 (citing Kavaliauskas v. Department of the
Treasury, 120 M.S.P.R. 509, ¶ 5 (2014)). However, when an appellant is found
guilty of a crime under state law, the Board will apply the common law of that
state regarding collateral estoppel to determine the preclusive effect of the
conviction. Graybill v. U.S. Postal Service, 782 F.2d 1567, 1571-73 (Fed. Cir.
1986); see Mosby v. Department of Housing & Urban Development , 114 M.S.P.R.
674, ¶ 5 (2010). Accordingly, we modify the initial decision to consider the
doctrine of collateral estoppel under California law.
¶4 Under California law, the following four criteria govern the application of
collateral estoppel to issues raised in a prior criminal proceeding:
(1) the prior conviction must have been for a serious offense so that
the defendant was motivated to fully litigate the charges; (2) there
must have been a full and fair trial to prevent convictions of doubtful
validity from being used; (3) the issue on which the prior conviction
is offered must of necessity have been decided at the criminal trial;
and (4) the party against whom collateral estoppel is asserted was a
party or in privity with a party to the prior trial.
Ayers v. City of Richmond, 895 F.2d 1267, 1271 (9th Cir. 1990); see, e.g.,
Holguin v. City of San Diego, 135 F. Supp. 3d 1151, 1159 (S.D. Cal. 2015).
Collateral estoppel will not be applied unless the time for appeal has elapsed. See
Ayers, 895 F.2d at 1271-72.
¶5 Here, the appellant’s conviction was for a serious offense, the issues are the
same, and the appellant is a party in both actions. The appellant asserts only that
he has not fully litigated his conviction, and thus the Board should stay his
removal to afford him the opportunity to do so. PFR File, Tab 1 at 4. However,
we have considered the agency’s argument and the case disposition information,
submitted for the first time on review, indicating that the California Court of
Appeal for the Fourth District, Division 2 (California Court of Appeal), has since
affirmed the appellant’s conviction and that he did not file an appeal with the
Supreme Court of California, as this evidence and argument demonstrates that the
conviction has since been fully litigated. PFR File, Tab 6 at 7-8, Tab 9 at 29-36;
4
see Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d,
839 F.3d 1126 (Fed. Cir. 2016). The California Court of Appeal affirmed the
appellant’s conviction of forcible rape on October 17, 2017. People v. Holt,
No. E066715, 2017 WL 4640113 (Cal. Ct. App. Oct. 17, 2017) . The appellant
had 10 days to file a petition for review in the California Supreme Court. Cal. R.
Ct. 8.500(e)(1). He did not do so, and the California Court of Appeal issued a
remittitur on December 19, 2017, certifying that the case is complete. PFR File,
Tab 9 at 31. Accordingly, the appellant’s argument that the Board should stay his
removal to afford him the opportunity to fully litigate his appeal is moot. Thus,
we sustain the charge and affirm the removal.
NOTICE OF APPEAL RIGHTS 2
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 an d
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.
2
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.
5
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 you r 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 App eals 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
6
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. ____ , 137 S. Ct. 1975 (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, o r 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:
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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).
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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 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 websi te 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.