The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE MENCHACA, DOCKET NUMBERS
Appellant, DA-3443-22-0285-I-1
DA-0353-22-0404-I-1
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jose Menchaca , San Antonio, Texas, pro se.
Theresa M. Gegen , Esquire, St. Louis, Missouri, 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 decisions, which
dismissed these appeals for lack of jurisdiction. We JOIN the appeals for
processing pursuant to 5 C.F.R. § 1201.36. 2 On petition for review, the appellant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and not adversely affect the interests of the
parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria. See Tarr,
2
reasserts that he was constructively suspended or placed on enforced leave; the
administrative judge improperly focused on his challenge to the Office of
Workers’ Compensation Programs decision denying his compensation request; he
is a Vietnam veteran and was denied due process; he was subjected to retaliation
and a hostile work environment; the agency failed to accommodate his medical
restrictions and violated the Rehabilitation Act of 1973; he was improperly
denied a limited duty or light duty assignment as a reasonable accommodation;
and he was improperly denied the ability to conduct discovery and his requested
hearing. Generally, we grant petitions such as these 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). As discussed
below, we modify the initial decision to find that some of the claims the appellant
raised in his second Board appeal should have been dismissed in the interest of
adjudicatory efficiency instead of on the grounds of collateral estoppel. After
fully considering the filings in these appeals, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petitions for
review.
Regarding the appellant’s argument in his second Board appeal alleging
that he was denied restoration or constructively suspended based on his absences
during the period from March 4 through May 17, 2022, the administrative judge
in that appeal dismissed these claims on the basis that the appellant was
115 M.S.P.R. 216, ¶ 9.
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collaterally estopped from relitigating these issues because they were raised in the
prior appeal, concluding that each of the four criteria set forth in McNeil v.
Department of Defense, 100 M.S.P.R. 146 (2005) had been met. Menchaca v.
U.S. Postal Service, MSPB Docket No. DA-0353-22-0404-I-1, Initial Appeal File,
Tab 14, Initial Decision at 3-4.
When an appellant files an appeal that raises claims raised in an earlier
appeal after the initial decision in the earlier appeal has been 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). In other words, the Board will dismiss on the
basis of adjudicatory efficiency when an identity of issues exists and the
controlling issues in the appeal will be determined in a prior appeal. Bean v. U.S.
Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013).
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, 100 M.S.P.R. 146, ¶ 15.
Collateral estoppel, however, 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 second initial decision was issued, the appellant’s prior
appeal was pending before the Board on petition for review, and therefore,
dismissal of the appellant’s claim that he was denied restoration or constructively
suspended during the period from March 4 through May 17, 2022, on the basis of
collateral estoppel was inappropriate. Id. This claim should have instead been
4
dismissed on the grounds of adjudicatory efficiency. Id. Accordingly, we
conclude that the administrative judge erred by applying the doctrine of collateral
estoppel to dismiss this claim raised in the subsequent appeal. Nevertheless,
because we have joined the two appeals and ultimately agree with the
administrative judge’s conclusion in the first appeal that the appellant was not
denied restoration or constructively suspended during the relevant time period
and have now issued the instant final decision on the issue, we conclude that the
administrative judge’s error in dismissing the claim on the basis of collateral
estoppel as opposed to on the grounds of adjudicatory efficiency did not prejudice
the appellant’s substantive rights. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). Therefore, we DENY the petitions for review. Except as
expressly MODIFIED to find that some of the claims the appellant raised in the
second Board appeal should have been dismissed in the interest of adjudicatory
efficiency instead of on the grounds of collateral estoppel , we AFFIRM the joined
initial decisions.
NOTICE OF APPEAL RIGHTS 3
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
3
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
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
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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
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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. 4 The court of appeals must receive your petition for
4
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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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
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.