                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES G. EVANS,                                 DOCKET NUMBER
                   Appellant,                        DE-3443-14-0230-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 2, 2014
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           James R. Hefflin, Newport Beach, California, for the appellant.

           Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     found that he was collaterally estopped from relitigating the issue of whether he
     was an “employee” with Board appeal rights under 5 U.S.C. chapter 75 and
     dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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, and based on the following points and
     authorities, 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).

                                     BACKGROUND
¶2        In May 2011, the appellant filed an appeal to the Board concerning his
     departure from federal service claiming involuntary disability retirement, which
     the Board dismissed for lack of jurisdiction because the appellant was not an
     employee    with   appeal    rights.      Evans   v.   Department    of   Veterans
     Affairs, 119 M.S.P.R. 257, ¶¶ 2, 5-6 (2013). Almost 3 years later, the appellant
     filed a “mixed case” appeal from an agency equal employment opportunity
     decision issued in July 2011, dismissing his complaint of harassment/hostile work
     environment and alleged constructive discharge concerning the same separation
     from federal service. Initial Appeal File (IAF), Tab 1. The administrative judge
     issued an order to show cause why the appeal should not be barred by the prior
     Board determination, but the appellant did not address this issue in his responsive
     pleading. IAF, Tabs 2, 4. The administrative judge dismissed the appeal for lack
     of jurisdiction, finding that the appeal was precluded from being relitigated under
                                                                                            3

     the doctrine of collateral estoppel and that the Board otherwise lacked jurisdiction
     over the appellant’s remaining discrimination claims.             IAF, Tab 9, Initial
     Decision (ID) at 4-5.     On review, the appellant merely argues that the initial
     decision was “wrongly decided,” without making any substantive legal arguments
     concerning the administrative judge’s application of collateral estoppel. Petition
     for Review (PFR) File, Tab 1.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶3         The threshold issue in the earlier case was whether the appellant was an
     “employee” with Board appeal rights under 5 U.S.C. chapter 75. In the prior
     appeal, the Board found that it did not have jurisdiction over the appellant’s claim
     because he was not an “employee,” as defined by 5 U.S.C. § 7511.
     Evans, 119 M.S.P.R. 257, ¶¶ 5-6. In the instant appeal, the administrative judge
     found that the appellant was collaterally estopped from relitigating this same
     issue. ID at 4-5.
¶4         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. 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.
¶5         We conclude that the appellant has not shown error in the administrative
     judge’s finding that the elements of collateral estoppel have been met in this case
     regarding the Board’s jurisdiction over the appellant’s earlier claim and that he is
     thus precluded from relitigating this issue.             First, the issue previously
                                                                                       4

     adjudicated, the appellant’s appeal rights before the Board, is identical to that in
     the present action.   Second, the jurisdictional issue of the appellant’s appeal
     rights concerning a chapter 75 adverse action was actually litigated in the prior
     action. As discussed by the Board in the prior decision issued in March 2013,
     positions that are excluded from the competitive service under a provision of
     Title 38 are excluded from appeal rights and coverage under subchapter II of
     chapter 75. 5 U.S.C. § 7511(b)(10); Evans, 119 M.S.P.R. 257, ¶ 6. Based on the
     parties’ pleadings and the evidence in the record, the Board found that it was
     undisputed that the appellant was a nurse appointed under 38 U.S.C. § 7401(1),
     and thus he lacked the right to appeal chapter 75 adverse actions to the Board.
     Evans, 119 M.S.P.R. 257, ¶ 6. Third, the determination on the appellant’s appeal
     rights to the Board was necessary to the resulting judgment in the prior action, as
     the Board found that the appeal was outside its purview because the appellant
     was not an “employee.” Finally, the appellant was a party to the earlier action
     and had a full and fair opportunity to litigation the jurisdictional issue in the
     prior action.
¶6         Thus, we find that all four elements of collateral estoppel have been met in
     the present case, precluding the re-adjudication of the appellant’s right to appeal
     a chapter 75 adverse action to the Board. We note that the appellant received
     notice of potential issue preclusion from the administrative judge’s order to show
     cause why the Board had jurisdiction over his appeal but failed to address this
     issue in his responsive pleading. See IAF, Tabs 2, 4. Further, although the initial
     decision thoroughly explained the elements of collateral estoppel, ID at 4-5, the
     appellant’s vague petition for review fails to present any meaningful argument on
     this issue, PFR File, Tab 1. We also find that the administrative judge correctly
     found that the Board lacks jurisdiction over the remaining claims in the
     appellant’s discrimination complaint.    See ID at 4. The Board does not have
     jurisdiction over discrimination claims absent an otherwise appealable action.
                                                                                     5

See   5    U.S.C.   §    7702(a)(1);    Pridgen    v.   Office   of   Management   and
Budget, 117 M.S.P.R. 665, ¶ 7 (2012).

                   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.
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
                                                                           6

Merit Systems Protection Board appellants before the court. 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.
