                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ARTHUR SWEETING,                                DOCKET NUMBER
                 Appellant,                          AT-315H-16-0389-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: August 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Arthur Sweeting, Mountain View, California, pro se.

           Steven R. Simon, Esquire, Phoenix, Arizona, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     found that his termination appeal was barred by 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
                                        BACKGROUND
¶2         The history of this appeal began almost 37 years ago, when the appellant
     was terminated from his probationary GS-6 Correctional Officer position
     effective November 1979.        Initial Appeal File (IAF), Tab 1 at 3, 7.        The
     administrative judge dismissed his appeal for lack of jurisdiction. Id. at 7. The
     Board remanded the case to the administrative judge to give the appellant an
     opportunity to offer proof in support of his allegation that he was terminated
     because   of     partisan   political   reasons.    Sweeting   v.   Department     of
     Justice, 6 M.S.P.R. 715, 716-17, 719-20 (1981).             After considering the
     appellant’s arguments, the administrative judge again dismissed the appeal for
     lack of jurisdiction. IAF, Tab 1 at 6. In 1990, the appellant filed a petition for
     review, which the Board dismissed as untimely filed. Sweeting v. Department of
     Justice, 48 M.S.P.R. 36, 38, aff’d per curiam, 949 F.2d 403 (Fed. Cir.
     1991) (Table).
¶3         On February 11, 2016, the appellant filed the instant appeal, rearguing the
     merits of his termination.     IAF, Tab 1.    The administrative judge ordered the
     appellant to show cause why his appeal should not be dismissed as barred by the
     doctrine of collateral estoppel. IAF, Tab 4. Both the appellant and the agency
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     responded to the order.     IAF, Tabs 5-6.    On May 18, 2016, the administrative
     judge found that the jurisdictional issue was the same as that litigated in the prior
     appeal, and dismissed the case as barred by the doctrine of collateral estoppel
     without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 7, Initial
     Decision (ID).
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. He alleges that there is new and material evidence that previously
     was unavailable despite his due diligence, and requests that the Board take action
     to safeguard his Fourteenth Amendment rights and assist him in removing a
     stigma attached to his reputation. Id. The agency has responded to the petition
     for review and the appellant has replied. PFR File, Tabs 3‑4.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5         Collateral estoppel, or issue preclusion, bars a party from relitigating a
     matter that was previously litigated and is applicable if: (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 one whose interests were otherwise fully represented in
     that action.     McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶¶ 15‑16
     (2005).
¶6         As noted by the administrative judge, the issue in the current appeal is
     identical to that which was litigated and resolved in the prior appeal: whether the
     Board has jurisdiction over the appellant’s probationary termination appeal. ID
     at 3. The administrative judge held that the appellant was given a full and fair
     opportunity to litigate the question of jurisdiction in the prior appeal. Id. We
     agree that the appellant received a full and fair opportunity to litigate the
     jurisdictional issue.    The appeal was remanded to address the appellant’s
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     jurisdictional claims in a prior Board Opinion and Order. Id. There is no reason
     to believe that the appellant did not receive a fair opportunity to present his
     arguments at that time. Because the administrative judge correctly articulated
     and applied the doctrine of collateral estoppel, the Board lacks a basis upon
     which to grant the appellant’s petition for review.
¶7           The appellant alleges that his petition should be granted based on new
     information that was unavailable at the time of his appeal despite his due
     diligence.     PFR File, Tab 1.       However, this “new” evidence consists of
     documentation from 1979 concerning his probationary termination action.           Id.
     at 5‑11. The appellant has not provided any corroboration that this evidence is
     actually new or was unavailable when he filed the original appeal, despite his due
     diligence. Moreover, even if the proffered evidence were new and previously
     unavailable, its content addresses the merits of the appellant’s claim and is not
     material to the jurisdictional issue.        See Okello v. Office of Personnel
     Management, 112 M.S.P.R. 563, ¶¶ 6-7 (2009) (finding that new evidence did not
     provide a basis to reopen or reinstate a petition for review because it was not
     material to the dispositive jurisdictional issue).
¶8           On review, the appellant requests a “due process hearing.” PFR File, Tab 1
     at 4.    Because the Board lacks jurisdiction over the appeal, we also lack
     jurisdiction to hear the appellant’s due process claim. Rivera v. Department of
     Homeland Security, 116 M.S.P.R. 429, ¶ 16 (2011). Further, collateral estoppel
     applies here even if a hearing was not held on the jurisdictional issue.          See
     Fisher v. Department of Defense, 64 M.S.P.R. 509, 514-15 (1994) (finding that
     the “actually litigated” requirement of collateral estoppel requires only that the
     issue must have been contested by the parties and resolved by the adjudicator).
¶9           Accordingly, we affirm the initial decision.
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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 U.S. 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 U.S. 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 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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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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
