                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARSHA L. PAYTON,                               DOCKET NUMBER
                  Appellant,                         AT-0353-16-0369-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: October 6, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Marsha L. Payton, Holly Hill, Florida, pro se.

           Linda A. Church, Miami, Florida, 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
     dismissed the appeal as 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The doctrines of res judicata (claim preclusion) and collateral estoppel
     (issue preclusion) both concern the preclusive effects of a prior adjudication and
     are based on similar policy concerns—to “relieve 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, 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).
¶3         Following her September 15, 2004 removal for misconduct, in pertinent part
     unrelated to a compensable injury that she suffered in September 2003, the
     appellant filed an appeal in which she contended that the agency improperly
     failed to restore her to duty following a compensable injury; the administrative
                                                                                         3

     judge dismissed the appeal for lack of jurisdiction, and the Board affirmed that
     initial decision. Payton v. Department of Homeland Security, 113 M.S.P.R. 463
     (finding that, because the agency removed her for misconduct, the appellant
     failed to make the required showing that she was separated due to a compensable
     injury), aff’d, 403 F. App’x 496 (Fed. Cir. 2010); see Payton v. Department of
     Homeland Security, MSPB Docket No. AT‑0752‑05-0043-I-1, Initial Decision at
     1-2 (Feb. 10, 2005) (Removal ID), petition for review denied, 99 M.S.P.R. 669
     (2005) (Table).
¶4         In this action, the appellant once again alleges that the agency improperly
     failed to restore her to duty following a compensable injury. Initial Appeal File
     (IAF), Tab 1. She requested a hearing. Id. The agency moved to dismiss the
     appeal on the basis of res judicata, citing the appellant’s repeated unsuccessful
     restoration appeals. IAF, Tab 6. Because, as noted above, the Board dismissed
     appellant’s prior restoration appeal for lack of jurisdiction, the administrative
     judge issued an order in which he set forth the elements of collateral estoppel and
     ordered the appellant to show cause why her restoration claim should not be
     dismissed as barred by either collateral estoppel or lack of jurisdiction. IAF, Tab
     19.
¶5         On the written record, without holding a hearing, the administrative judge
     found that the appellant’s previous appeals were based on the same allegation in
     the instant appeal, i.e., the Board’s jurisdiction over the appellant’s claim that the
     agency improperly failed to restore her to duty following a compensable injury.
     IAF, Tab 32, Initial Decision (ID) at 5-6. Because that issue was litigated and
     resolved in the appellant’s prior appeals, was necessary to the determinations
     therein, and the appellant had a full and fair opportunity to litigate the issue in
     those appeals, the administrative judge dismissed the appeal as barred by the
     doctrine of collateral estoppel. ID at 6.
¶6         We agree with the administrative judge’s decision to dismiss the appeal on
     the basis of collateral estoppel. As noted above, because the Board decided the
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     exact jurisdictional issue in a previous action, finding that the agency removed
     the appellant for misconduct in pertinent part unrelated to her compensable
     injury, the doctrine of collateral estoppel precludes her relitigation of the
     previously decided jurisdictional issue. E.g., Peartree, 66 M.S.P.R. at 338. As
     we noted in Payton v. Department of Homeland Security, MSPB Docket
     No. AT-0353-11-0956-I-1, Final Order (Aug. 3, 2012), aff’d, 526 F. App’x 957
     (Fed. Cir. 2013), the question of the appellant’s restoration rights is identical, the
     parties actually litigated the issue in the previous action, resolution of the issue
     was necessary to the resulting judgment, and the appellant was fully represented,
     see Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 9 (2003) (citing 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; the “fully
     represented” requirement is satisfied when the party to whom collateral estoppel
     is applied has had a full and fair chance to litigate the issue in question)).
¶7         Thus, we find that the administrative judge correctly dismissed the appeal
     as barred under the doctrine of collateral estoppel.          ID at 6.    None of the
     appellant’s arguments on review address this issue, which is the sole issue on
     review. Petition for Review (PFR) File, Tabs 1-8. 2 Accordingly, we deny the
     appellant’s petition for review.




     2
       Following the close of the record on review, the appellant submitted five additional
     pleadings. PFR File, Tabs 12-16. The Board’s regulations do not provide for pleadings
     other than a petition for review, a cross petition for review, a response to the petition
     for review or cross petition for review, and a reply to a response to a petition for
     review. 5 C.F.R. § 1201.114(a)(5). Because the appellant failed to file a motion with
     and obtain leave from the Clerk of the Board prior to filing her additional pleadings,
     these pleadings were rejected and returned to the appellant without consideration. See
     id.
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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 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 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.
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      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:                         ______________________________
                                       Jennifer Everling
                                       Acting Clerk of the Board
Washington, D.C.
