                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM O. WAGONER,                              DOCKET NUMBERS 1
                  Appellant,                          CH-0752-09-0702-I-1
                                                      CH-0752-13-0546-I-1
                  v.

     UNITED STATES POSTAL SERVICE,
                   Agency.                            DATE: October 9, 2014



                THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Steven Sams, Esquire, Fishers, Indiana, for the appellant.

           Lana S. Johnson, Esquire, Chicago, Illinois, for the agency.


                                            BEFORE

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


                                        FINAL ORDER

¶1         The appellant filed a petition for review of the initial decision in his most
     recent removal appeal, MSPB Docket No. CH-0752-13-0546-I-1 (Wagoner III),

     1
       We are joining these interrelated cases, see 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36,
     because joinder will expedite the processing of these cases and will not adversely affect
     either party, see As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 12 (2000).
     2
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     which dismissed the appeal as untimely on the grounds that relitigation of the
     timeliness of the appeal was barred under the doctrine of collateral estoppel.
     Upon review, the Office of the Clerk of the Board notified the appellant that,
     because the petition included argument relating to the initial decision in MSPB
     Docket No. CH-0752-09-0702-I-1 (Wagoner II), the Board also would consider
     the submission as a petition for review in that case. Generally, we grant petitions
     such as these 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 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, 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 in Wagoner III.       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).    For the reasons set forth below, the appellant’s petition for
     review in Wagoner II is DISMISSED as untimely filed without good cause
     shown. 5 C.F.R. § 1201.114(e), (g).

                                      BACKGROUND
¶2         The agency removed the appellant for unacceptable conduct from his
     position as a clerk, effective July 3, 2008.      Wagoner III, Initial Appeal File
     (IAF-III), Tab 11 at 17-20. The appellant filed a removal appeal with the Board
     in October 2008, which was dismissed without prejudice.          See MSPB Docket
     No. CH-0752-09-0089-I-1 (Wagoner I), Initial Appeal File, Tab 19, Initial
                                                                                           3

     Decision (ID-I); see also IAF-III, Tab 11 at 28-31. In the analysis section of the
     decision, the administrative judge ordered that the appellant “must refile” his
     appeal within 30 days from the date of the final disposition of the criminal charge
     related to his removal.      ID-I at 2.     However, in the decision section, the
     administrative judge stated that the appellant “may refile” his appeal within 30
     days following the final criminal disposition but “must in any event refile the
     appeal by July 1, 2009.” ID-I at 2.
¶3         On June 13, 2009, the appellant refiled his appeal of the 2008 removal, and
     referenced an arbitration award dated May 21, 2009, finding that he had been
     removed for just cause.     Wagoner II, Initial Appeal File (IAF-II), Tab 1; see
     IAF-II, Tab 4. On October 9, 2009, the administrative judge dismissed the appeal
     as untimely filed. IAF-II, Tab 11, Initial Decision (ID-II). The administrative
     judge found that because the criminal matter concluded on March 23, 2009, when
     the court entered its sentence, the appellant was required to refile his appeal by
     April 22, 2009, and was untimely in refiling by 7½ weeks. ID-II at 2-3. The
     administrative judge found no good cause for waiving the time limit, noting that
     the record indicated that the appellant had waited to refile the appeal until after
     the conclusion of his grievance of the removal action and that his argument
     concerning his wife’s medical condition was unpersuasive. ID-II at 3-5.
¶4         The appellant did not request review of that decision by the Board or the
     U.S. Court of Appeals for the Federal Circuit, and the decision became final on
     November 13, 2009.       See ID-II at 6.    Instead, more than 3½ years later, on
     May 23, 2013, he filed a new appeal of the 2008 removal. 3 Wagoner III, Initial

     3
       In the interim, the appellant filed an appeal of the Office of Personnel Management’s
     determination that he was ineligible for retirement benefits, and the Board affirmed the
     agency’s decision. Wagoner v. Office of Personnel Management, MSPB Docket
     No. CH-0831-11-0115-B-1, Final Order (July 10, 2012). The Federal Circuit affirmed
     the final order of the Board on April 8, 2013. Wagoner v. Office of Personnel
     Management, 524 F. App’x 630, 633-34 (Fed. Cir. 2013). The court found that the
     Board was entitled to rely on the appellant’s removal for misconduct as an established
     fact in the retirement case because he had not challenged the dismissal of his earlier
                                                                                           4

     Appeal File (IAF-III), Tab 1 at 1-4, Tab 4. The administrative judge issued an
     order to show cause why the appeal should not be barred by the October 9, 2009
     decision in Wagoner II under the doctrine of res judicata. IAF-III, Tab 2. In
     response, the appellant argued that res judicata could not be applied to his appeal
     because the case has not been litigated on the merits.         IAF-III, Tab 10.    The
     agency filed a motion to dismiss the appeal, arguing that the appellant was
     collaterally estopped on the issue of the timeliness of his appeal. IAF-III, Tab 11
     at 4-11. The administrative judge dismissed the appeal, finding that the appellant
     was collaterally estopped from relitigating the issue of the timeliness of the
     appeal of the 2008 removal because that issue had been fully adjudicated in
     Wagoner II. IAF-III, Tab 17, Initial Decision (ID-III) at 2-3.
¶5         The Board granted the appellant’s three requests for extensions of time to
     file a petition for review.     Wagoner III, Petition for Review (PFR-III) File,
     Tabs 1-4, 6-7. In his petition for review, filed on January 21, 2014, the appellant
     argued that the doctrine of res judicata should not apply to the appeal because
     there has been no Board decision on the merits of the case, but he did not address
     the case law and explanation of the collateral estoppel doctrine in both the initial
     decision and the agency’s motion to dismiss.         PFR-III File, Tab 8 at 3.     The
     appellant further argued that his June 13, 2009 appeal was timely filed because
     the March 2, 2009 dismissal order stated that he “may refile the appeal within
     [30] days” of the resolution of the criminal case. Id. at 3-4; ID-I at 2.




     removal appeal (i.e., Wagoner II). Id. at 633. We note that the appellant filed the most
     recent appeal approximately 1 month after the court’s decision. IAF-III, Tab 1. The
     administrative judge in Wagoner III clarified with the appellant that the adverse action
     he is appealing is the 2008 removal from employment, not the retirement eligibility
     determination. IAF-III, Tab 4.
                                                                                       5

                     DISCUSSION OF ARGUMENTS ON REVIEW

     The Wagoner II petition for review is untimely filed by 3½ years with no good
     cause shown for the delay.
¶6         The Board has considered the petition for review in Wagoner III as a
     petition for review in Wagoner II because the petition included argument related
     to the initial decision in Wagoner II.    PFR-III File, Tab 2 at 1.     The Board
     notified the appellant that the time limit set forth in the Wagoner II initial
     decision for filing a petition for review was November 13, 2009, and thus the
     January 21, 2014 petition in Wagoner II was untimely.            Id. at 1-2.    The
     acknowledgment letter instructed the appellant that the Board’s regulation
     under 5 C.F.R. § 1201.114(g) requires that a petition for review that appears to be
     untimely be accompanied by a motion to accept the filing as timely and/or waive
     the time limit for good cause. Id.
¶7         To be timely, a petition for review generally must be filed within 35 days of
     the date of the initial decision’s issuance. 5 C.F.R. § 1201.114(e). 4 The Board
     will waive its filing deadline only upon a showing of good cause for the delay in
     filing.   5 C.F.R. §§ 1201.12, 1201.114(f).     To establish good cause for the
     untimely filing of an appeal, a party must show that he exercised due diligence or
     ordinary prudence under the particular circumstances of the case.        Alonzo v.
     Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board should
     consider the length of the delay in every good cause determination.        Walls v.
     Merit Systems Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994).
¶8         The appellant filed a motion to accept the petition for review as timely,
     arguing only that the June 13, 2009 appeal in Wagoner II was timely refiled under
     his interpretation of the dismissal without prejudice order. Wagoner II, Petition
     for Review (PFR-II) File, Tab 3 at 2. However, the appellant requested no review
     of the initial decision in Wagoner II by the Board or the U.S. Court of Appeals

     4
       Although the Board has amended its regulations since 2009, those amendments do not
     affect the outcome in these appeals.
                                                                                           6

      for the Federal Circuit but waited over 3½ years to file a new appeal and
      subsequent petition for review of the 2008 removal.          Thus, we find that the
      petition for review was filed untimely, and the appellant has failed to show good
      cause for waiving the timeliness requirement.
¶9          Accordingly, we dismiss the petition for review as untimely filed. This is
      the final decision of the Merit Systems Protection Board regarding the timeliness
      of the petition for review in Wagoner II. The initial decision remains the final
      decision of the Board regarding the timeliness of the removal appeal in
      Wagoner II.
      The Wagoner III appeal is barred by the doctrine of collateral estoppel.

¶10         At issue is whether the appellant is collaterally estopped, in Wagoner III,
      from relitigating the timeliness of his appeal of the 2008 removal.         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). The
      Board clarified in McNeil v. Department of Defense that the fourth prong requires
      that 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. 100 M.S.P.R.
      146, ¶ 15 (2005). The dismissal of a Board appeal on timeliness grounds can be
      given collateral estoppel effect if the elements of that doctrine are established.
      Allen v. Office of Personnel Management, 77 M.S.P.R. 212, 221 n.5 (1998) (final
      decisions in chapter 75 appeals that had been dismissed on timeliness grounds
      were not relitigated under the doctrine of collateral estoppel insofar as the
      appellants did not present different bases for a finding of good cause for the
      delayed filing); see Nebblett v. Office of Personnel Management, 73 M.S.P.R.
                                                                                            7

      342, 347 & n.2 (1997) (finding that the administrative judge’s dismissal of a prior
      appeal on the basis of untimeliness, which became the Board’s final decision, was
      a collateral estoppel bar to a subsequent appeal of the same Office of Personnel
      Management reconsideration decision), aff’d, 152 F.3d 948 (Fed. Cir. 1998)
      (Table).
¶11         We conclude that the appellant has not shown error in the administrative
      judge’s finding that the elements of collateral estoppel have been met in this case
      regarding the timeliness of the appeal of the 2008 removal.           First, the issues
      previously adjudicated, i.e. whether the appellant had timely filed or had good
      cause for the untimely filing of an appeal of the 2008 removal, are materially
      identical to the dispositive issues in the present action. The appellant has not
      alleged any new or previously unavailable basis for finding good cause.             See
      Allen, 77 M.S.P.R. at 221 n.5.        Second, the material timeliness issues were
      actually litigated in the prior action.    The administrative judge in Wagoner II
      found that the appellant refiled the appeal almost 3 months after the conclusion of
      the criminal matter, despite instructions to refile within 30 days and that the
      appellant made no persuasive argument of good cause to waive the timeliness
      requirements. ID-II at 2-5. Any appeal filed after the April 22, 2009 deadline
      would be untimely, and the Wagoner III appeal was not filed until May 23, 2013.
      IAF-III, Tab 1. The appellant has made no allegation of changed circumstances
      or new evidence suggesting good cause for the substantial delay in filing the
      appeal. 5   See Allen, 77 M.S.P.R. at 221 n.5.          Third, the determination of
      timeliness of the appeal was necessary to the resulting judgment in the prior
      action, as the Board dismissed the appeal as untimely filed. Finally, the appellant
      was a party to the earlier action and had a full and fair opportunity to litigate the
      timeliness issue in the prior action.     Thus, we find that all four elements of

      5
        Although not argued by the appellant, the intervening retirement decision and
      adjudication do not constitute good cause for the delay in filing his appeal of the 2008
      removal. See supra n.3.
                                                                                         8

      collateral estoppel have been met in the present case, precluding the
      readjudication of the timeliness of an appeal of the 2008 removal.
¶12         Despite any confusion regarding the administrative judge’s discussion of res
      judicata in the context of issue preclusion, we note that the appellant received
      clear notice of potential application of the doctrine of collateral estoppel from the
      agency’s motion to dismiss and the initial decision. See ID-III; see also IAF-III,
      Tabs 2, 11. Furthermore, although the initial decision thoroughly explained the
      elements of collateral estoppel, IAF-III, Tab 17 at 2-3, the appellant’s petition for
      review merely reargues that there had not been a decision on the merits of the
      2008 removal appeal for the purposes of res judicata and that the Wagoner II
      initial appeal had been timely filed, PFR-III, Tab 8 at 3-4.
¶13         Accordingly, having reviewed the record, we find no basis to disturb the
      administrative judge’s finding that the doctrine of collateral estoppel precludes
      the readjudication of the timeliness of the appeal of the appellant’s 2008 removal.

                      NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
                      FOR MSPB DOCKET NO. CH-0752-13-0546-I-1
            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
      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).
                                                                                      9

        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. 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 an appeal to the
United States Court of Appeals for the Federal Circuit, 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 Federal Circuit.        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.

                   NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
                   FOR MSPB DOCKET NO. CH-0752-09-0702-I-1
         You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
         You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                                                                                   10

                             Office of Federal Operations
                    Equal Employment Opportunity Commission
                                P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                             Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                 Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                       11

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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