                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


JOHN DOE, 1                                      DOCKET NUMBER
                    Appellant,                   DC-0752-14-1130-I-1

             v.

PENSION BENEFIT GUARANTY                         DATE: September 29, 2015
  CORPORATION,
             Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      John Doe, Clinton, Maryland, pro se.

      Katherine Leong and Paul Chalmers, Washington, D.C., for the agency.


                                       BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
  While the appellant did not request John Doe status in this appeal, we have granted the
appellant’s request for anonymity in previous Board appeals. Accordingly, we find it
appropriate to allow the appellant to proceed anonymously and grant her John Doe
status sua sponte.
2
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                        FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this appeal pursuant to 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
     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.            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, 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 and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         Collateral estoppel, or issue preclusion, is appropriate when (1) an 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 precluded was fully
     represented in the prior action. E.g., Kroeger v. U.S. Postal Service, 865 F.2d
     235, 239 (Fed. Cir. 1988).       The Board clarified in McNeil v. Department of
     Defense, 100 M.S.P.R. 146, ¶ 15 (2005), that the fourth prong requires that 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.          The dismissal of a Board
     appeal on timeliness grounds can be given collateral estoppel effect if the
     elements of that doctrine are established.        E.g., Allen v. Office of Personnel
                                                                                              3

     Management, 77 M.S.P.R. 212, 221 n.5 (1998); Nebblett v. Office of Personnel
     Management, 73 M.S.P.R. 342, 347 & n.2 (1997) (finding that the administrative
     judge’s dismissal of a prior appeal on the basis of untimeliness, which became the
     Board’s final decision, was a collateral estoppel bar to a subsequent appeal of the
     same Office of Personnel Management reconsideration decision), aff’d, 152 F.3d
     948 (Fed. Cir. 1998) (Table).
¶3         The appellant previously filed a July 17, 2013 appeal of her May 11, 2011
     removal, which the assigned administrative judge found untimely filed without
     good cause shown. Doe v. Pension Benefit Guaranty Corporation, MSPB Docket
     No. DC-0752-13-1225-I-1, Initial Decision (Nov. 29, 2013); see Initial Appeal
     File (IAF), Tab 4 at 11-30.      The appellant filed a petition for review and the
     Board affirmed that initial decision, making it the Board’s final decision on the
     timeliness of the appellant’s appeal of her May 11, 2011 removal. Doe v. Pension
     Benefit Guaranty Corporation, MSPB Docket No. DC-0752-13-1225-I-1, Final
     Order (July 31, 2014); see IAF, Tab 4 at 32-45; 5 C.F.R. § 1201.113(b). This
     appeal, docketed on September 30, 2014, also concerns the appellant’s May 11,
     2011 removal. IAF, Tabs 1, 3, 8. The agency moved to bar the appeal on the
     basis of collateral estoppel. IAF, Tab 4. In his initial decision, the administrative
     judge granted the agency’s motion and barred the appeal on that basis.               IAF,
     Tab 9, Initial Decision (ID) at 3.
¶4         In her timely filed petition for review, 3 the appellant contends, among other
     things, that she was denied a hearing and the opportunity to call witnesses.
     Petition for Review (PFR) File, Tab 6 at 2. She mentions the timeliness issue in
     that context, id. at 6, but fails to address the elements of collateral estoppel.
     Moreover, the appellant offers no argument or evidence which could establish


     3
       The appellant requested three extensions of the time limit for filing her petition for
     review. Petition for Review (PFR) File, Tabs 1, 3, 5. The Clerk of the Board granted
     the appellant’s first two requests, and she timely filed her petition for review before the
     expiration of the second extension. PFR File, Tabs 2, 4, 6.
                                                                                       4

     that the administrative judge assigned to her prior appeal erred in deciding the
     timeliness issue or that could otherwise show that her prior appeal was either
     timely filed or that could show good cause existed for her delay in filing. The
     agency responds in opposition to the appellant’s petition for review. PFR File,
     Tab 8.
¶5         We agree with the administrative judge that the identical issue of the
     timeliness of the appellant’s appeal of her May 11, 2011 removal was actually
     litigated in her prior appeal, the resolution of that issue was necessary to the
     resulting final judgment in that appeal, and the appellant was fully represented
     therein. ID at 3. Accordingly, we affirm the administrative judge’s dismissal of
     this action as barred by the doctrine of collateral estoppel.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the
     United States Court of Appeals for the Federal Circuit. You must submit your
     request to the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

           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 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.
                                                                                     5

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    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.
     If you are interested in securing pro bono representation for an appeal to the
United States 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.
