Opinion

Andrew Wiesner v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Mar 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW C. WIESNER, DOCKET NUMBER

Appellant, PH-3443-22-0127-I-1

DEPARTMENT OF THE NAVY, DATE: March 25, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew C. Wiesner , Dover, New Hampshire, pro se.

Matthew L. Schmid , Portsmouth, New Hampshire, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his appeal as barred by res judicata and for lack of jurisdiction. On

petition for review, the appellant argues that the administrative judge erred by

applying the doctrine of res judicata to bar his appeal, reargues the merits of his

2013 removal, and reasserts that the terms of a 2020 agreement settling his civil

suit against the agency in the U.S. District Court for the District of Maine is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

invalid because it was coerced and lacked required language stating that it

complied with the Older Workers Benefit Protection Act of 1990 (OWBPA),

codified at 29 U.S.C. § 626(f). 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 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 find that the appellant is collaterally estopped from relitigating his

claim that his security clearance was revoked based on false statements by a Navy

investigator, we AFFIRM the initial decision.

On review, the appellant argues that the administrative judge erred by

applying the doctrine of res judicata to dismiss his appeal challenging his 2013

removal based on the revocation of his eligibility for a security clearance because

he only discovered that his security clearance was “un-revoked” in 2019 after

he received records under the Freedom of Information Act, and the reinstatement

of his clearance provides a new basis for challenging his removal. Petition for

Review (PFR) File, Tab 1 at 5.

Under the doctrine of res judicata, 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. Carson v. Department of Energy, 398 F.3d 1369, 1375

(Fed. Cir. 2005); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995).

Res judicata applies if (1) the prior decision was rendered by a forum with

competent jurisdiction, (2) the prior decision was a final decision on the merits,

and (3) the same cause of action and the same parties or their privies were

involved in both cases. Carson, 398 F.3d at 1375.

The administrative judge did not inform the appellant that his appeal may

be barred by res judicata or specifically identify the elements of proof for res

judicata and provide the appellant with an opportunity to provide evidence and

argument as to why his appeal should not be dismissed before issuing the initial

decision dismissing the appeal on that basis. Initial Appeal File (IAF), Tab 3. 2

An appellant must receive explicit information on what is required to

establish Board jurisdiction. Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985). By analogy, such notice is presumably

required before dismissing a claim as precluded. However, an administrative

judge’s failure to provide an appellant with proper Burgess notice may be cured if

the agency’s pleadings or the initial decision contain the notice that was

otherwise lacking. Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009).

The agency’s motion to dismiss the appeal cured the administrative judge’s error

by identifying the proper elements of proof for res judicata, as did the initial

decision, so the deficient notice was cured here. IAF, Tab 17 at 10-11; IAF,

Tab 38, Initial Decision (ID) at 3-4.

The administrative judge also properly found that the elements of res

judicata were satisfied in this case. ID at 6. The Board had jurisdiction over the

appellant’s 2013 appeal of his removal, and the Board’s subsequent decision in

that prior appeal constitutes a final decision on the merits. See Wiesner v.

Department of the Navy, MSPB Docket No. PH-0752-14-0342-I-1, Initial

Decision at 1-2 (June 3, 2014); see also Wiesner v. Department of the Navy ,

It appears that a preliminary telephonic status conference was held, but the

administrative judge did not issue an order summarizing the status conference, so it is

unclear whether the potential preclusive effect of the appellant’s prior appeal was

addressed during the conference. IAF, Tab 10.

MSPB Docket No. PH-0752-14-0342-I-1, Final Order, ¶ 1 (Dec. 15, 2014).

Accordingly, the first two criteria for application of res judicata are met.

Additionally, the third criteria is met because the instant appeal involves the same

cause of action as the 2013 appeal—the appellant’s removal based on the

revocation of his security clearance. To the extent that the appellant suggests that

res judicata should not apply because the instant appeal is based on a new legal

theory challenging his removal, the Board has held that appellants are not entitled

to return to the Board on the basis that they have developed a new theory. See

Sabersky v. Department of Justice, 91 M.S.P.R. 210, ¶¶ 7-8 (2002) (explaining

that res judicata bars an appellant from challenging a cause of action under a new

legal theory). Accordingly, we agree with the administrative judge’s finding that

the appellant’s challenges to his 2013 removal are barred by res judicata. 3

Regarding the appellant’s challenge to the December 2020 agreement

settling his civil suit against the agency, that settlement agreement was entered

into the record in a case before the U.S. District Court for the District of Maine,

not in a Board appeal. IAF, Tab 1 at 8-14. The Board may not address the

appellant’s allegation that the settlement agreement is invalid because it was

coerced and does not comply with OWBPA because the Board has no authority to

invalidate a settlement agreement reached in another forum. See, e.g., Johnson v.

U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008), aff’d, 315 F. App’x 274

Regarding the appellant’s argument that he is a partially recovered individual under

the Federal Employees’ Compensation Act (FECA) and that he is entitled to restoration

to his position, the appellant was removed from his position based on the revocation of

his eligibility for a security clearance and assignment to a sensitive position, not as a

result of any compensable injury, and so FECA is inapplicable to this appeal. PFR File,

Tab 1 at 4; see Wiesner v. Department of the Navy, MSPB Docket No. PH-0752-14-

0342-I-1, Final Order at ¶¶ 2-5 (Dec. 15, 2014) (noting that in order to be entitled to

certain rights to restoration, a covered individual must have been separated from their

position “as a result of a compensable injury”); 5 C.F.R. § 353.103(b). Thus, the Board

lacks jurisdiction over the appellant’s restoration claim. See Kingsley v. U.S. Postal

Service, 123 M.S.P.R. 365, ¶ 11 (2016) (explaining that an appellant must, as relevant

here, nonfrivolously allege that he was absent from work due to a compensable injury to

establish jurisdiction over his restoration claim).

(Fed. Cir. 2009); Goodwin v. Department of the Treasury, 52 M.S.P.R. 136, 139

n.2 (1991), aff’d, 983 F.2d 226 (Fed. Cir. 1992); Danelishen v. U.S. Postal

Service, 43 M.S.P.R. 376, 379-80 (1990). To the extent the appellant believes

that he should not be bound by the settlement agreement or that the agreement is

invalid, he may bring a proceeding to invalidate the agreement in the proper

forum. Johnson, 108 M.S.P.R. 502, ¶ 8 n.5.

Finally, we modify the initial decision to find that the appellant is

collaterally estopped from relitigating his claim that his security clearance was

revoked based on false statements by a Navy investigator. Under the doctrine of

collateral estoppel, once an adjudicatory body has decided a factual or legal issue

necessary to its judgment, that decision may preclude relitigation of the issue in a

case concerning a different cause of action involving a party to the initial case.

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). 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. Id. The Board has held that collateral

estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a

jurisdictional determination in a prior decision is afforded collateral estoppel

effect and the appellant provides no other valid basis of Board jurisdiction. Id.

In the initial decision, the administrative judge concluded that the only

issue the appellant had not raised in his previous Board appeals was his claim that

his security clearance was revoked based on false statements by a Navy

investigator. ID at 6. Consequently, he considered this argument and determined

that the Board lacked jurisdiction over this claim because the Board could not

review the substance of the underlying security clearance determination, citing

the U.S. Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S.

518 (1988). ID at 6.

However, the appellant made this identical argument in a prior Board

appeal, and the same administrative judge that adjudicated the instant appeal

concluded that the Board lacked jurisdiction over that claim on the same basis in

that prior appeal. See Wiesner v. Department of the Navy, MSPB Docket No.

PH-3443-21-0204-I-1, Initial Appeal File, Tab 1 at 10; Tab 7 at 4-5; Tab 13,

Initial Decision at 6. The Board has since issued a Final Order that denies the

petition for review and affirms the initial decision in that prior case. Wiesner v.

Department of the Navy, MSPB Docket No. PH-3443-21-0204-I-1, Final Order

at 2 (Mar. 8, 2024). Additionally, the finding that the Board lacks the ability to

review the substance of the underlying security clearance determination was

necessary to the jurisdictional determination in the prior appeal. Thus, the

elements of collateral estoppel have been satisfied here, and we modify the initial

decision to find that the appellant is collaterally estopped from relitigating this

claim in the instant appeal.

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

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.

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:

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

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.

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