                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3200


                         YOLANDA C. GIBSON-MICHAELS,

                                                    Petitioner,

                                          v.

                 FEDERAL DEPOSIT INSURANCE CORPORATION,

                                                    Respondent.


      Yolanda C. Gibson-Michaels, of Temple Hills, Maryland, pro se.

       Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Brian M. Simkin, Assistant Director.


Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3200

                          YOLANDA C. GIBSON-MICHAELS,

                                                            Petitioner,

                                               v.

                  FEDERAL DEPOSIT INSURANCE CORPORATION,

                                                            Respondent.


Petition for review of the Merit Systems Protection Board in DC1221080698-W-1.

                           __________________________

                            DECIDED: November 4, 2009
                           __________________________


Before MICHEL, PLAGER, and LINN, Circuit Judges.

PER CURIAM.

      Yolanda C. Gibson-Michaels (“Gibson-Michaels”) appeals the final judgment of

the Merit Systems Protection Board (“Board”), which dismissed her individual right of

action appeal on the basis of collateral estoppel. Gibson-Michaels v. Fed. Deposit Ins.

Corp., No. DC-1221-08-0698-W-1 (M.S.P.B. Mar. 31, 2009). Because we find no basis

to overturn the Board’s decision, we affirm.

      Gibson-Michaels worked as an Information Specialist for the Federal Deposit

Insurance Corporation (“FDIC”). The FDIC initiated her removal in December 2004 for

numerous incidents of misconduct. In January 2005, Gibson-Michaels entered into a

settlement agreement with the FDIC in which she resigned and withdrew a number of
Equal Employment Opportunity (“EEO”) complaints in exchange for a portion of her

annual salary and other benefits. On April 20, 2005, the FDIC notified Gibson-Michaels

that since the settlement agreement did not include a required notice under the Age

Discrimination in Employment Act she had the option to cancel the agreement within

seven calendar days. Gibson-Michaels timely provided notice of her intent to cancel the

settlement agreement. The FDIC, however, declined to cancel the agreement based on

some of the language in Gibson-Michaels’s notice. Gibson-Michaels filed an individual

right of action (“IRA”) appeal on June 28, 2005. In her appeal, Gibson-Michaels claimed

both that she had engaged in protected whistleblowing activity and that she had been

coerced into resigning from the agency.        The administrative judge (“AJ”) therefore

docketed the appeal as two separate appeals. Gibson-Michaels v. Fed. Deposit Ins.

Corp., No. DC-0752-05-0633-I-1 (M.S.P.B. Nov. 14, 2005) (“Gibson-Michaels I”).

      In the first IRA appeal, in which Gibson-Michaels claimed that she had been

coerced into resigning, the AJ found that Gibson-Michaels had given proper notice of

her intent to cancel the settlement agreement and that the FDIC had erred in not giving

effect to the cancellation. Gibson-Michaels I at 4. The AJ ordered the agency to cancel

Gibson-Michaels’s resignation, retroactively reinstate her to her position as an

Information Specialist, and pay her the appropriate amount of back pay. Id. The FDIC

complied with this order. See Gibson-Michaels v. Fed. Deposit Ins. Corp., M.S.P.B.

Docket Nos. DC-0752-05-0633-C-1 (Final Order, Oct. 26, 2006) and DC-0752-05-0633-

C-2 (Final Order, Oct. 26, 2006) (finding in favor of the FDIC in two enforcement actions

related to Gibson-Michaels’s reinstatement and the calculation of back pay); Gibson-




2009-3200                                  2
Michaels v. Fed. Deposit Ins. Corp., 226 F. App’x 1003 (Fed. Cir. 2007) (dismissing

appeals of both enforcement actions as voluntarily withdrawn).

       In the second IRA appeal, in which Gibson-Michaels claimed retaliation against

whistleblowing disclosures, the AJ found that Gibson-Michaels had not shown that she

had engaged in any protected whistleblowing activity and dismissed the appeal for lack

of jurisdiction. Gibson-Michaels v. Fed. Deposit Ins. Corp., No. DC-1221-05-0594-W-2

(M.S.P.B. Mar. 2, 2006) (“Gibson-Michaels II”).      Gibson-Michaels claimed that her

whistleblowing disclosures consisted of reporting her supervisor for violating her rights

under the Family and Medical Leave Act of 1993, fabricating facts, and falsifying her

leave balances. Id. at 4-5. Gibson-Michaels also claimed that she had provided the

Office of Special Counsel with evidence of “FDIC’s fraud, waste, abuse, nepotism,

money laundering, wire fraud, contacts, [and] inside trading.” Id. at 5. The AJ found

that none of the allegations or evidence provided by Gibson-Michaels showed that she

could reasonably have concluded that the actions of the government evidenced a

violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health and safety. Id.

at 4-6.   The Board denied Gibson-Michaels’s petition for review on July 11, 2006.

Gibson-Michaels v. Fed. Deposit Ins. Corp., 104 M.S.P.B. 143 (2006) (unpublished

table decision).

       Following her reinstatement, on December 19, 2005, the FDIC issued Gibson-

Michaels a proposed removal based on the same misconduct that prompted the

initiation of removal in December 2004. On March 27, 2006, the FDIC removed Gibson-




2009-3200                                  3
Michaels from her position for misconduct, including disrespectful and/or inappropriate

conduct and failure to follow instructions.

       Gibson-Michaels promptly filed an IRA appeal alleging that her removal was

retaliation for whistleblowing disclosures. The AJ found that Gibson-Michaels did not

provide any evidence that she had provided any disclosures to the Office of Special

Counsel, and therefore had not exhausted her administrative remedies or made any

“allegations that, if proven true, could be construed as showing that she engaged in

protected whistleblowing activity.” Gibson-Michaels v. Fed. Deposit Ins. Corp., No. DC-

1221-06-0413-W-1 (M.S.P.B. May 4, 2006) (“Gibson-Michaels III”). The Board denied

Gibson-Michaels’s petition for review on July 27, 2006.       Gibson-Michaels v. Fed.

Deposit Ins. Corp., 103 M.S.P.B. 234 (2006) (unpublished table decision). This court

affirmed the Board’s decision in February 2007. Gibson-Michaels v. Fed. Deposit Ins.

Corp., 214 F. App’x 998 (Fed. Cir. 2007).

       On August 11, 2008, Gibson-Michaels filed another IRA appeal, again alleging

that her removal was retaliation by the FDIC for whistleblowing disclosures. Apparently,

Gibson-Michaels filed the new appeal because the Office of Special Counsel had

“reopened [its] investigation” of her whistleblower allegations and had “issued a

decision” on June 11, 2008. Pet’r’s Br. at 1-2. The Office of Special Counsel did send a

letter to Gibson-Michaels dated June 11, 2008 in which it stated it was closing her file.

The AJ dismissed the appeal on the basis of collateral estoppel, finding that Gibson-

Michaels’s alleged protected whistleblowing disclosures were the same disclosures

previously raised before the Board. Gibson-Michaels v. Fed. Deposit Ins. Corp., No.

DC-1221-08-0698-W-1 (M.S.P.B. Dec. 4, 2008). The Board denied Gibson-Michaels’s



2009-3200                                     4
petition for review on March 31, 2009. Gibson-Michaels v. Fed. Deposit Ins. Corp., 111

M.S.P.B. 310 (2009) (unpublished table decision).          Gibson-Michaels filed a timely

appeal with this court on May 27, 2009.

       This court’s review of a decision of the Board is limited by statute. Under 5

U.S.C. § 7703(c) (2006), this court is bound by a decision of the Board unless we find it

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

obtained without procedures required by law; or unsupported by substantial evidence.

See, e.g., Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999).               The

jurisdiction of the Board is a legal question that this court reviews without deference.

Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003).

       Under the doctrine of collateral estoppel (sometimes referred to as issue

preclusion), a litigant who has litigated an issue in a full and fair proceeding is estopped

from relitigating the issue in a subsequent proceeding. See Thomas v. Gen. Servs.

Admin., 794 F.2d 661, 664 (Fed. Cir. 1986). Collateral estoppel “is normally applicable

if (i) the issue previously adjudicated is identical with that now presented, (ii) that issue

was ‘actually litigated’ in the prior case, (iii) the previous determination of that issue was

necessary to the end-decision then made, and (iv) the party precluded was fully

represented in the prior action.” Id. The AJ properly found that all the elements of the

doctrine were satisfied. In the IRA appeals of June 2005 and March 2006, the AJ fully

considered, but rejected, Gibson-Michaels’s allegations of whistleblowing reprisal for the

same disclosures made in December 2004.            Her two-page informal brief offers no

arguments and cites no evidence as to why the AJ erred in dismissing her




2009-3200                                     5
whistleblowing appeal as being previously litigated, and therefore provides no basis for

us to rule in her favor.

        In her informal brief, Gibson-Michaels references a footnote in the AJ’s Initial

decision of May 4, 2006. In this footnote, the AJ stated that “[t]he agency thereafter

removed the appellant, effective March 31, 2006, based on unrelated charges of

misconduct.”    Gibson-Michaels III at 2-3 n.2 (emphasis added).        Gibson-Michaels

apparently interprets this statement as proof that her removal was “unrelated to

misconduct” and therefore, presumably must be related to her whistleblowing activity.

Pet’r’s Br. at 1.   However, this language actually refers to the fact that the FDIC

removed Gibson-Michaels from her position based on misconduct that was unrelated to

the Board’s order finding that her resignation was involuntary. It does not provide any

basis for a finding that Gibson-Michaels’s removal was in retaliation for whistleblowing

activity.

        Gibson-Michaels also challenges the propriety of her March 2006 removal and

the enforcement of the November 2005 Board decision. However, these issues were

not raised to the AJ and therefore are not properly addressed in this appeal. Frank v.

Dep’t of Transp., Fed. Aviation Admin., 35 F.3d 1554, 1559 (Fed. Cir. 1994) (“[W]e do

not consider issues that were not raised in the proceedings below.”).

        For the foregoing reasons, the Board’s decision is affirmed.




2009-3200                                    6
