                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM R. KELLY,                               DOCKET NUMBER
                   Appellant,                        DC-1221-14-0171-W-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: August 19, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brooke L. Beesley, Alameda, California, for the appellant.

           Christiann C. Burek, Washington, D.C., 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
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
     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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         The appellant filed a Board appeal in which he alleged that his resignation,
     effective September 30, 2011, constituted reprisal for his whistleblowing
     activities. Kelly v. Department of Commerce, MSPB Docket No. DC-0752-12-
     0131-I-1, Initial Decision (ID-1) at 1 (May 30, 2012).           The appellant had
     tendered his resignation pursuant to the terms of a Resolution Agreement entered
     into by the agency and the appellant in October 2010. Initial Appeal File (IAF),
     Tab 6 at 19, 22. In the initial decision, the administrative judge examined the
     appeal both as a chapter 75 appeal and as an IRA appeal and found that the
     appellant failed to establish jurisdiction under either framework. ID-1 at 4-13.
     The administrative judge found, among other things, that the appellant failed to
     nonfrivolously allege that the 2010 Resolution Agreement was invalid or
     unlawful, that he involuntarily accepted its terms, or that it was the result of
     fraud or mutual mistake.       ID-1 at 6.    The administrative judge concluded,
     therefore, that the appellant’s resignation pursuant to the agreement was
                                                                                           3

     voluntary and      did   not   constitute   a   personnel   action   under   5   U.S.C.
     § 2302(a)(2)(A). ID-1 at 12.
¶3         The appellant filed a petition for review of the initial decision, which the
     Board denied, making the initial decision the Board’s final decision. Kelly v.
     Department of Commerce, MSPB Docket No. DC-0752-12-0131-I-1, Final Order
     at 2 (July 24, 2013). The appellant subsequently requested review of the Board’s
     final decision with the United States Court of Appeals for the Federal Circuit
     (Federal Circuit), and the Federal Circuit affirmed the Board’s decision. 2 Kelly
     v. Merit Systems Protection Board & Department of Commerce, No. 2013-3178,
     2014 WL 2849246 (Fed. Cir. June 24, 2014).
¶4         On November 22, 2013, the appellant filed the present IRA appeal in which
     he alleged that his reassignment and transfer out of his work group in 2010, to
     which he also agreed pursuant to the 2010 Resolution Agreement, were taken in
     retaliation for his whistleblowing activities.      IAF, Tab 1 at 5.      In an initial
     decision based on the written record, the administrative judge dismissed the
     appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID-2) at 1, 9. She
     found that the 2010 Resolution Agreement encompassed his resignation as well
     as his reassignment and transfer out of his work group and that the appellant
     therefore was collaterally estopped from relitigating the issue of the validity of
     the agreement. ID-2 at 8-9.
¶5         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. The agency has filed a response in opposition to


     2
       In the initial decision in the present appeal, the administrative judge noted that the
     Federal Circuit had dismissed the appellant’s petition for review of the Board’s final
     decision in his resignation appeal in a decision dated January 15, 2014. IAF, Tab 10,
     Initial Decision at 2. In his petition for review, the appellant properly notes that the
     Federal Circuit vacated and recalled that decision on January 17, 2014. Petition for
     Review File, Tab 1 at 2 n.2. Since the appellant filed his petition for review, however,
     the Federal Circuit has issued its final decision in the matter, affirming the Board’s
     final decision. Kelly v. Merit Systems Protection Board & Department of Commerce,
     No. 2013-3178, 2014 WL 2849246 (Fed. Cir. June 24, 2014).
                                                                                        4

     the petition for review, PFR File, Tab 3, to which the appellant has replied, PFR
     File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6          Collateral estoppel is appropriate when the following conditions are met:
     (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 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. Gossage v. Department
     of Labor, 118 M.S.P.R. 455, ¶ 13 (2012).
¶7          Here, because the appellant agreed to the reassignment and transfer out of
     his work group pursuant to the 2010 Resolution Agreement, the dispositive issue
     for purposes of the collateral estoppel analysis is the validity of that agreement.
     We agree with the administrative judge for the reasons explained in the initial
     decision that all four criteria for collateral estoppel have been met concerning
     this issue. ID-2 at 6-9. Although the appellant argues that he has never been
     given an opportunity to litigate the issue of his reassignment and transfer, PFR
     File, Tab 1 at 2-4, Tab 4 at 2-3, the record shows that the appellant had a full and
     fair opportunity to litigate the validity of the 2010 Resolution Agreement in his
     prior appeal but that he failed to nonfrivolously allege that the Resolution
     Agreement was invalid or that he involuntarily accepted its terms, ID-1 at 4-6.
     Under these circumstances, we agree with the administrative judge that the
     appellant is barred by collateral estoppel from relitigating the validity of the
     2010     Resolution   Agreement   and,   consequently,   his    acceptance   of   the
     reassignment and transfer as part of that agreement.           See, e.g., Jenkins v.
     Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 22 (2012).
                                                                                     5

¶8        The appellant also appears to argue that he should not be barred by
     collateral estoppel from litigating the facts underlying the 2010 Resolution
     Agreement based on the Board’s recent decision in Kavaliauskas v. Department
     of the Treasury, 120 M.S.P.R. 509 (2014). PFR File, Tab 1 at 2-3, Tab 4 at 3. In
     Kavaliauskas, the Board found that the appellant, who had entered into a pretrial
     diversion agreement, was not collaterally estopped from challenging the facts
     underlying his pretrial diversion agreement because the “actually litigated”
     criterion had not been satisfied where the appellant had not pled guilty in the
     agreement and had not been convicted. 120 M.S.P.R. 509, ¶¶ 5-8. Unlike in
     Kavaliauskas, however, the “actually litigated” criterion in the present appeal
     has been met because the administrative judge held a hearing and rendered a
     decision on the issue of the validity of the 2010 Resolution Agreement, and the
     Federal Circuit affirmed that decision. ID-1; Kelly, No. 2013-3178, 2014 WL
     2849246; see Fisher v. Department of Defense, 64 M.S.P.R. 509, 514 (1994) (the
     “actually litigated” criterion requires that the issue be contested by the parties
     and resolved by an adjudicator).       Accordingly, the appellant’s argument is
     unpersuasive.

                     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.
           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 want to request review of the Board’s decision concerning your claims of
     prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),
                                                                                  6

(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s
disposition of any other claims of prohibited personnel practices, you may request
review of this final decision by the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction. The court of appeals
must receive your petition for review within 60 days after the date of this order.
See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file,
be very careful to file on time. You may choose to request review of the Board’s
decision in the United States Court of Appeals for the Federal Circuit or any
other court of appeals of competent jurisdiction, but not both. Once you choose
to seek review in one court of appeals, you may be precluded from seeking
review in any other court.
         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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective           websites,          which         can        be        accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           7

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.
