                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     GEORGE HEATH,                                   DOCKET NUMBER
                  Appellant,                         DA-0752-14-0233-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 24, 2015
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           George Heath, Corona, California, pro se.

           Norbert S. Walker, Fort Bliss, Texas, for the agency.


                                           BEFORE

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


                                     REMAND ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the appellant’s removal. For the reasons discussed below, we VACATE
     the initial decision, GRANT the appellant’s petition for review and REMAND the
     case to the regional office for further adjudication in accordance with this Order.


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         After the Board reversed the agency’s prior removal action because the
     deciding official considered ex parte information in making his decision, Heath v.
     Department of the Army, MSPB Docket No. DA-0752-13-0408-I-1, Initial
     Decision (Sept. 12, 2013) (0408-I-1 ID), 2 the agency took the action at issue here,
     proposing and effecting the appellant’s removal for a second time on the same
     three charges: (1) failure to observe orders, rules, or procedures, where safety to
     persons or property is endangered; (2) failure to observe orders, rules, or
     procedures, where safety to persons or property is not endangered; and (3) failure
     to carry out assigned duties, see 0408-I-1 ID at 3; see also Initial Appeal File
     (IAF), Tab 7, Subtabs 4A-4D.
¶3         In this appeal of the agency’s second removal action, the appellant argued
     among other things that the agency’s replacement of the deciding official in the
     second removal action did not remedy the agency’s violation of his right to due
     process because it failed to address the hostility that he contended was revealed in
     the ex parte information that required the Board’s reversal of the agency’s prior
     removal action. IAF, Tab 1 at 4-5. In addition to that alleged violation of his due
     process, the appellant asserted the affirmative defense that this action also was
     the result of reprisal for protected whistleblowing, contending that but for the
     agency’s failure to reinstate him into a supervisory position as it was ordered to


     2
       Specifically, the administrative judge found that the agency vio lated the appellant’s
     right to due process when the deciding official in the first removal action considered as
     an aggravating factor new information that was not included in the notice of proposed
     removal and which indicated to him that the appellant’s inab ility to get along with h is
     supervisors was causing problems for his fellow workers. See 0408-I-1 ID at 15-17.
     Neither party petitioned for review of that in itial decision. However, instead of
     retroactively reinstating the appellant, as the administrative judge ordered, 0408-I-1 ID
     at 17, the agency retroactively placed him on administrative leave, and simultaneously
     began the removal action at issue in this appeal, IAF, Tab 7, Subtabs 4B-4E. The
     appellant immediately filed a petition for enforcement, which remains pending at the
     regional office. Heath v. Department of the Army, MSPB Docket No. DA-0752-13-
     0408-C-1.
                                                                                           3

     do in the initial decision in MSPB Docket No. DA-0752-13-0408-I-1, and making
     him subordinate to an enlisted service member, the agency would never had
     removed him. E.g., IAF, Tab 1 at 5, Tab 8 at 8. The appellant also claimed
     whistleblower retaliation as a result of his appearance on a local television news
     program, citing a senior staff meeting held after that interview in order to discuss
     how to respond.      IAF, Tab 8 at 9.        He likewise challenged the agency’s
     compliance with the remand initial decision in his separately filed individual right
     of action (IRA) appeal, in which the administrative judge granted the appellant’s
     request for corrective action, Heath v. Department of the Army, MSPB Docket
     No. DA-1221-12-0654-B-1, Remand Initial Decision (Jan. 27, 2014), 3 arguing
     that the animus underlying the retaliation found in that matter tainted the
     agency’s subsequent action, IAF, Tab 1 at 5. The appellant did not request a
     hearing. Id. at 2.
¶4         After filing his appeal, the appellant moved for certification of an
     interlocutory appeal on the issue of the effect of the administrative judge’s
     finding of reprisal in the remand initial decision in MSPB Docket No. DA-1221-
     12-0654-B-1 on the instant appeal. IAF, Tab 4. He argued therein that every
     action that the agency took against him was attributable to the reprisal found in
     that IRA appeal such that the instant removal action was, like evidence from an
     illegal search, the fruit of that poisonous tree. 4 Id.     The administrative judge



     3
       The appellant filed a separate petition for enforcement of that decision. Heath v.
     Department of the Army, MSPB Docket No. DA-1221-12-0654-C-1. The administrative
     judge denied that petition for enforcement, MSPB Docket No. DA-1221-12-0654-C-1,
     Compliance File, Tab 10, Initial Decision (June 13, 2014), and the appellant has
     petitioned for review of that decision, MSPB Docket No. DA-1221-12-0654-C-1,
     Petition for Review File, Tab 1. The Board’s decision in that matter, wh ich is also
     being remanded to the regional office for further adjudication, d iscusses in greater
     detail the factual background of these two cases. See Heath v. Department of the Army,
     MSPB Docket No. DA-1221-12-0654-C-1, Remand Order (Feb. 24, 2015).
     4
       The fru it of the poisonous tree doctrine is a criminal law concept that prevents the
     admission of any evidence that was directly seized as the result of an illegal search or
                                                                                           4

     denied the appellant’s motion for an interlocutory appeal, noting that the law is
     well settled that an agency may cure its violation of an employee’s right to due
     process and then later take a second removal action on the same charges against
     the employee.      IAF, Tab 5; see, e.g., Lopes v. Department of the Navy,
     119 M.S.P.R. 106, ¶ 4 (2012) (citing Ward v. U.S. Postal Service, 634 F.3d 1274,
     1280 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation,
     179 F.3d 1368, 1377 (Fed. Cir. 1999)). We agree with the administrative judge’s
     denial of the appellant’s motion for certification and find that she did not abuse
     her discretion in doing so. 5 Moreover, any alleged error as to that ruling is cured
     by our consideration of the appellant’s petition for review herein. See Strauss v.
     Office of Personnel Management, 39 M.S.P.R. 132, 135 n.1 (1988).
¶5         On the written record, the administrative judge affirmed the agency’s
     action, finding that the appellant was barred by the doctrine of collateral estoppel
     from litigating the facts underlying the agency’s charges. IAF, Tab 20, Initial
     Decision (ID) at 2-3. 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


     gathered indirectly because of information that was learned or leads that were obtained
     during the illegal search. See Wong Sun v. United States, 371 U.S. 471 (1963).
     5
       Importantly, the Board’s regulations define an interlocutory appeal as an appeal of a
     ruling made by the administrative judge during a proceeding. See 5 C.F.R. § 1201.91.
     In this case, however, when the appellant moved for an interlocutory appeal, the
     administrative judge had not yet made any rulings but instead had issued only
     acknowledgment and record closing orders, to which the appellant had voiced no
     objections. See IAF, Tabs 1-4. In this context, the appellant’s motion therefore is more
     aptly described as preemptory rather than interlocutory. Moreover, one of the criteria
     under which an administrative judge will certify a ruling for review is when the record
     shows that it “involves an important question of law or policy about which there is
     substantial ground for difference of opinion.” 5 C.F.R. § 1201.92(a). Here, the issue of
     whether the reprisal identified in the remand initial decision in MSPB Docket No. DA-
     1221-12-0654-B-1 tainted the instant removal action is instead one of fact and therefore
     not appropriately the subject of an interlocutory appeal.
                                                                                        5

     fully represented in the prior action.     E.g., Kroeger v. U.S. Postal Service,
     865 F.2d 235, 239 (Fed. Cir. 1988); McNeil v. Department of Defense,
     100 M.S.P.R. 146, ¶ 15 (2005).       However, because the administrative judge
     assigned to the appellant’s appeal of the first removal action reversed the
     agency’s action on the basis of due process, her determination on the substantive
     charges, 0408 I-1 ID at 6-11, was not necessary to the resulting judgment. Thus,
     the administrative judge’s application of the doctrine of collateral estoppel to the
     substantive charges was inappropriate and we accordingly VACATE the initial
     decision.
¶6        Moreover, even though the administrative judge may, in a second removal
     action like the instant matter, incorporate portions of the record of the prior
     removal appeal into the record in this appeal, she also must afford the parties the
     opportunity to further develop the record to the extent that, in her discretion, that
     evidence and testimony is both relevant and nonduplicative of the evidence
     already in the record. See, e.g., Lopes, 119 M.S.P.R. 106, ¶¶ 9-10. Because the
     administrative judge failed to afford the parties that required opportunity, see
     IAF, Tab 12, we must REMAND the appeal to the regional office for further
     adjudication in accordance with this Remand Order.         Upon remand, and after
     giving the parties an opportunity to supplement the record consistent with the
     authorities cited above, including granting the appellant a hearing if he requests
     one, the administrative judge should readjudicate the matter, including the
     charges, nexus, penalty, and the appellant’s affirmative defenses, including, but
     not limited to, his claim that but for the agency’s failure to reinstate him into a
     supervisory position as it was ordered to do, the agency would never have
     removed him.

                                           ORDER
          For the reasons discussed above, we REMAND this case to the regional
     office for issuance of a new initial decision that identifies all material issues of
                                                                                6

fact and law, summarizes the evidence, resolves issues of credibility, and
includes the administrative judge’s conclusions of law and her legal reasoning, as
well as the authorities on which that reasoning rests.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
