Opinion

Danny Lee v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Mar 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANNY LEE, DOCKET NUMBER

Appellant, SF-3443-22-0586-I-1

SOCIAL SECURITY DATE: March 26, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Danny Lee , Poway, California, pro se.

Jamie L. Barnhill , Baltimore, Maryland, 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 challenging his nonselection for lack of jurisdiction and

dismissed his challenge to his 2018 resignation as involuntary on the grounds of

adjudicatory efficiency. On petition for review, the appellant argues that the

administrative judge failed to address a number of his claims in the initial

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision; reargues that his 2018 resignation decision was involuntary and that

agency officials engaged in wrongdoing in connection with his resignation; and

that he has filed numerous complaints with the Office of Special Counsel (OSC)

and the agency’s Office of the Inspector General but his complaints have been

ignored. 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’s involuntary resignation claim is barred by the doctrine of

collateral estoppel instead of on the grounds of adjudicatory efficiency , we

AFFIRM the initial decision.

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

had not alleged that the Board had jurisdiction over his appeal challenging his

nonselection for a position as a claim under the Uniformed Services Employment

and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.

§§ 4301-4335) (USERRA) or the Veterans Employment Opportunities Act of

1998 (VEOA), but he did not provide a specific explanation for how the appellant

could establish jurisdiction over his USERRA and VEOA claims in the orders on

jurisdiction or in the initial decision. Lee v. Social Security Administration,

MSPB Docket No. SF-3443-22-0586-I-1, Initial Appeal File (IAF), Tab 2 at 2-5,

Tab 7 at 2-3, Tab 21, Initial Decision (ID) at 5-7.

To establish Board jurisdiction over a USERRA appeal under 38 U.S.C.

§ 4311(a), an appellant must allege that: (1) he performed duty or has an

obligation to perform duty in a unformed service of the United States; (2) the

agency denied his initial employment, reemployment, retention, promotion, or

any benefit of employment; and (3) the denial was due to the performance of duty

or obligation to perform duty in the unformed service. Williams v. Department of

the Treasury, 110 M.S.P.R. 191, ¶ 8 (2008). To establish Board jurisdiction over

an appeal brought under VEOA, an appellant must, among other things, show that

he exhausted his administrative remedy with the Department of Labor (DOL) by

filing a complaint with DOL containing a summary of the allegations that form

the basis of the complaint. Graves v. Department of Veterans Affairs,

117 M.S.P.R. 491, ¶ 8 (2012). As the administrative judge observed, on his

initial appeal form the appellant checked the box indicating that he is not entitled

to veterans’ preference, did not check the box indicating that he filed a complaint

with DOL, and he has not otherwise alleged that he is a preference-eligible or

presented any argument that implicates Board jurisdiction over his nonselection

under USERRA or VEOA. ID at 2-3; IAF, Tab 1 at 1. Accordingly, we agree

that the appellant has not established a regulatory or statutory right to appeal his

nonselection to the Board on these bases.

Addressing a potential suitability claim, the administrative judge

acknowledged that the appellant checked the box on the appeal form alleging a

negative suitability determination but nevertheless concluded that the appellant

“did not seek to invoke the Board’s jurisdiction” over this claim because his

pleadings did not include any further mention of it. ID at 6-7. However, there is

no indication in the record that the appellant did not intend to pursue this claim,

so we will address it now. Regulations promulgated by the Office of Personnel

Management (OPM) in 2008 state that a “suitability action,” as defined in those

regulations, may be appealed to the Board. 2 5 C.F.R. § 731.501(a). Suitability

determinations examine whether “a person’s character or conduct . . . may have

an impact on the integrity or efficiency of the service.” 5 C.F.R. § 731.101. If an

individual is deemed unsuitable for service based on one or more of the factors

enumerated in 5 C.F.R. § 731.202(b), the acting agency may take a suitability

action, which is defined as a removal, debarment, cancellation of eligibility, or

cancellation of reinstatement eligibility. 5 C.F.R. § 731.203. Nevertheless, as

the administrative judge observed, under 5 C.F.R. § 731.203(b), “[a]

non-selection, or cancellation of eligibility for a specific position . . . is not a

suitability action even if it is based on reasons set forth in § 731.202.” ID at 7

n.2 (citing Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 12 (2012).

There is no evidence in the record indicating that OPM or any agency official

took a suitability action against the appellant in connection with his nonselection

for the identified position. Accordingly, we conclude that the appellant failed to

establish Board jurisdiction over his appeal as a suitability action.

Finally, in the initial decision the administrative judge considered the

appellant’s allegations that his 2018 resignation was involuntary, but dismissed

that claim for lack of jurisdiction on the grounds of adjudicatory efficiency,

reasoning that the appellant had filed a prior Board appeal challenging his

resignation as involuntary, that appeal resulted in an initial decision finding that

the Board lacked jurisdiction over his claim, and a petition for review of the

initial decision in that prior case was then pending before the Board. ID at 10-11;

see Lee v. Social Security Administration , MSPB Docket No. SF-0752-18-0753-

The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92,

§ 1086(f)(9), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state that

chapter 75 of Title 5 of the U.S. Code “does not apply to . . . a suitability action taken

by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the

President under [Title 5] for the administration of the competitive service.” 5 U.S.C.

§ 7512(F). See Odoh v. Office of Personnel Management, 2022 MSPB 5, ¶ 16. Neither

party addressed this issue below. Given our finding that the appellant’s nonselection

was not a suitability action, we do not consider the effect, if any, of section 7512(F) on

this appeal.

I-1, Initial Decision (Aug. 9, 2019) (0753 ID); Initial Appeal File (0753 IAF),

Tab 27; Lee v. Social Security Administration, MSPB Docket No. SF-0752-18-

0753-I-1, Petition for Review (0753 PFR) File, Tab 1.

When an appellant files an appeal that is identical to claims raised in an

earlier appeal after the initial decision in an earlier appeal was issued, but before

the full Board has acted on the appellant’s petition for review, it is appropriate to

dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Zgonc

v. Department of Defense, 103 M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967

(Fed. Cir. 2007). By contrast, 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. Kavaliauskas v.

Department of the Treasury, 120 M.S.P.R. 509, ¶ 5 (2014); McNeil v. Department

of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). Collateral estoppel is only

appropriate when there is a final judgment in the previous litigation. Zgonc,

103 M.S.P.R. 666, ¶ 6.

At the time the administrative judge issued his initial decision, the

appellant’s petition for review in his 0753 appeal was still pending before the

Board. However, the Board now has issued its decision on the petition for review

in that case, affirming the initial decision dismissing his appeal for lack of

jurisdiction, so the administrative judge’s basis for dismissing the appeal is no

longer valid. See McNeil, 100 M.S.P.R. 146, ¶ 11; Lee v. Social Security

Administration, MSPB Docket No. SF-0752-18-0753-I-1, Final Order (Feb. 23,

2024) (0753 Final Order); 0753 PFR File, Tab 9. Under such circumstances, it

remains appropriate to dismiss the appellant’s claim challenging his 2018

resignation as involuntary in the instant appeal based on the doctrine of collateral

estoppel, rather than on the basis of adjudicatory efficiency. McNeil,

100 M.S.P.R. 146, ¶ 11.

The purpose of collateral estoppel is to “relieve the parties of the cost and

vexation of multiple lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudication.” Peartree v. U.S.

Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry,

449 U.S. 90, 94 (1980)). Collateral estoppel 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 the issue

preclusion is sought had a full and fair opportunity to litigate the issue in the

prior action. McNeil, 100 M.S.P.R. 146, ¶ 15 (2005).

The Board’s jurisdiction over the appellant’s appeal challenging his

resignation as involuntary was actually litigated before the Board in his

0753 appeal. The “actually litigated” element is satisfied when the issue was

properly raised by the pleadings, was submitted for determination, and was

determined. Kavaliauskas, 120 M.S.P.R. 509, ¶ 6. In the initial decision in the

prior case, the administrative judge found, after providing the parties with an

opportunity to address the jurisdictional issue, that the appellant failed to meet his

burden of making a nonfrivolous allegation that his resignation was involuntary

based on the following arguments: he was subjected to hostile or intolerable

work conditions purportedly perpetrated by the agency; he was forced to resign

because he was not provided with reasonable accommodations for his disability;

he had no alternative but to resign from his position; the agency threatened a

removal action it knew could not be substantiated; and his resignation was the

product of agency-provided misinformation or deceptive or misleading statements

by agency officials. 0753 ID at 1, 15-28.

Additionally, these findings were necessary to the administrative judge’s

determination in the prior initial decision that the Board lacks jurisdiction over

the appellant’s involuntary resignation appeal. After the appellant petitioned for

review, the Board affirmed that decision. 0753 Final Order. Finally, the

appellant was represented by an attorney in his prior Board appeal and he had a

full and fair opportunity to represent himself in his subsequent petition for review

to the Board on that matter. See Fisher v. Department of Defense, 64 M.S.P.R.

509, 515 (1994) (determining that a party’s pro se status does not preclude the

application of collateral estoppel). Thus, the doctrine of collateral estoppel is

appropriate here. Because the doctrine of collateral estoppel precludes the

appellant from relitigating the issue of the Board’s jurisdiction over the

voluntariness of his decision to resign, the Board does not have jurisdiction over

his claim in the instant appeal challenging his 2018 resignation. Accordingly, we

modify the initial decision to clarify the basis for the dismissal of the appellant’s

involuntary resignation claim. 3

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

On review, the appellant appears to indicate that he has filed additional complaints

with OSC and refers to an “attached email exhibit” purportedly related to his OSC

complaint, but he failed to provide any attachments with his petition for review.

Petition for Review (PFR) File, Tab 1 at 6. To the extent the appellant may have filed a

whistleblower reprisal complaint with OSC, he may file an individual right of action

(IRA) appeal with the Board’s regional office in accordance with the Board’s

regulations. See 5 C.F.R. §§ 1209.5, 1209.6. The appellant should carefully review the

Board’s regulations to determine whether any IRA appeal he may file is timely. See

5 C.F.R. § 1209.5.

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.

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

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

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,

petition for 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