                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DARRO ALSTON,                                   DOCKET NUMBER
                  Appellant,                         DC-3443-14-0789-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 13, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Darro Alston, Hampton, Virginia, pro se.

           Timothy M. O'Boyle, Esquire, Hampton, Virginia, 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
     dismissing his appeal under the Veterans Employment Opportunities Act (VEOA)
     in which he alleged that the agency improperly rescinded a job offer. Generally,
     we grant petitions such as this one only when:          the initial decision contains

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2         The appellant’s appeal was based on an October 3, 2012 notice he received
     from the agency’s VA Medical Center in Hampton, Virginia, rescinding the
     tentative job offer it had made him for the position of Time and Leave Clerk,
     GS-5, based on “FALSIFICATION of submitted information on your Declaration
     for Federal Employment.” Initial Appeal File (IAF), Tab 1 at 1-4. The appellant
     challenged the agency’s action, questioning the nature of the falsification to
     which the agency referred and indicating that he had learned that the job in
     question was given to a person “who was not a Vet.” Id. at 2. He stated that he
     had filed other appeals with the Board that had been dismissed. Id. at 2.
¶3         The administrative judge issued a lengthy order in which she reviewed the
     status of the multiple prior appeals the appellant had filed regarding the agency’s
     decision to rescind the job offer. 2 Id., Tab 3. Notably, she referred to a VEOA
     appeal the appellant had filed in which he similarly alleged that the agency’s

     2
       The administrative judge also noted the disposition of appeals the appellant had filed
     of other actions taken by the agency against him and other actions taken by other
     agencies against him. IAF, Tab 3.
                                                                                       3

     decision to rescind the job offer at issue violated his veterans’ preference rights.
     Id. at 3-4. The administrative judge noted that a different administrative judge
     had found in that case that the appellant did not timely raise the matter to the
     Department of Labor (DOL), that he failed to meet the standard for equitable
     tolling, and that his complaint to DOL was therefore untimely but that, in any
     event, he had failed to nonfrivolously allege that the agency violated his rights
     under a statute or regulation relating to veterans’ preference when it rescinded the
     job offer and therefore his VEOA claim was dismissed for lack of jurisdiction.
     Id.; Alston v. Department of Veterans Affairs, MSPB Docket No. DC-3330-13-
     0555-I-1, Initial Decision at 2-6 (Jun. 5, 2013). That administrative judge also
     found that, to the extent the appellant was attempting to argue that the agency’s
     rescission amounted to a negative suitability determination, he was barred by
     collateral estoppel from doing so. Id. at 6-7. The administrative judge in the
     instant case noted that that initial decision became a final decision of the Board
     when neither party filed a petition for review. IAF, Tab 3 at 4.
¶4         The administrative judge advised the appellant that the Board generally
     lacks jurisdiction over an employee’s nonselection for a position or allegations
     concerning an agency’s selection process and that it appeared that his
     nonselection and VEOA claims had already been decided. Id. at 5. She set out
     the requirements for res judicata and collateral estoppel, id., and ordered the
     appellant to show cause why his appeal should not be dismissed, id. at 6.
     Subsequently, the administrative judge issued an initial decision dismissing the
     appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1, 6. She
     found, consistent with her earlier order, that the Board generally lacks
     jurisdiction over an employee’s nonselection, and that that claim and the
     appellant’s suitability and VEOA claims had been heard and decided. ID at 5-6.
     She concluded that, based on the doctrines of res judicata and collateral
     estopppel, those claims were barred and therefore not within the Board’s
     jurisdiction. ID at 6.
                                                                                          4

¶5         In his petition for review, the appellant asks the Board to review his appeal
     which will reveal that “the agency did not follow the OPM rules.” Petition for
     Review (PFR) File, Tab 1.        The agency has responded in opposition to the
     appellant’s petition. Id., Tab 3.
¶6         It is well established that the Board generally lacks jurisdiction over an
     employee’s nonselection.       Pridgen v. Office of Management and Budget,
     117 M.S.P.R. 665, ¶ 6 (2012). Moreover, to the extent that the appellant is again
     claiming that the nonselection violated his rights under VEOA, he is barred from
     raising that claim by collateral estoppel. That doctrine applies 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); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 341 (1995).
     Collateral estoppel may bar a party from relitigating an issue in a second action
     even when, as here, the prior appeal was dismissed for lack of subject matter
     jurisdiction. Peartree, 66 M.S.P.R. at 338; see Luecht v. Department of the Navy,
     87 M.S.P.R. 297, ¶ 16 (2000).
¶7         In the instant case, the appellant argues that the Board has jurisdiction
     under VEOA to review his claim that the agency violated his veterans’ preference
     rights when it rescinded the job offer. The identical issue was raised and decided
     in the appellant’s earlier dismissed appeal, which held that he failed to
     nonfrivolously allege that the agency violated his rights in that regard. Alston v.
     Department of Veterans Affairs, MSPB Docket No. DC-3330-13-0555-I-1, Initial
     Decision at 6 (Jun. 5, 2013). Thus, the issue was actually litigated in the prior
     appeal. See Banner v. United States, 238 F.3d 1348, 1354 (Fed. Cir. 2001) (the
     “actually litigated” element is satisfied when the issue was “properly raised by
     the pleadings, was submitted for determination, and was determined”).              The
     determination of whether the Board had jurisdiction over the appellant’s VEOA
                                                                                      5

claim was necessary to the dismissal of the prior appeal. Finally, the appellant
has fully represented himself in both appeals.         See Fisher v. Department of
Defense, 64 M.S.P.R. 509, 515 (1994) (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).      Thus, the administrative judge
properly found that the doctrine of collateral estoppel bars the appellant from
relitigating the Board’s jurisdiction over this VEOA claim. See Noble v. U.S.
Postal Service, 93 M.S.P.R. 693, ¶ 9 (2003).         To the extent the appellant is
attempting to relitigate the suitability issue, we find that he is similarly barred by
collateral estoppel from doing so. 3

                 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

3
  It appears that the administrative judge also relied upon res judicata to preclude the
appellant from relitigating this matter. ID at 6. That theory is inapplicable, however,
as none of the appellant’s numerous appeals was decided on the merits. Peartree,
66 M.S.P.R. at 337. However, based on our finding above that the administrative judge
properly found that the appellant’s appeal is properly precluded by collateral estoppel,
any such error did not prejudice the appellant’s substantive rights. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
                                                                                  6

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
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.
