                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHARLES G. JOHNSON,                             DOCKET NUMBER
                   Appellant,                        DE-0353-16-0041-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 5, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Charles G. Johnson, Omaha, Nebraska, pro se.

           David P. Larson, Esquire, Sandy, Utah, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his 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 erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     administrative 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, 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. Except as expressly MODIFIED by
     this Final Order to provide the applicable burden of proof for restoration claims,
     we AFFIRM the initial decision.
¶2         The appellant is a former U.S. Postal Service employee. Initial Appeal File
     (IAF), Tab 1 at 1.    In the instant appeal, he appeared to allege that he was
     subjected to an involuntary retirement and also denied restoration. Id. at 1-2.
     The agency responded with a motion to dismiss. IAF, Tab 5. The agency argued
     that, since his retirement in 1992, the appellant already had brought the same
     matters before numerous venues, including the Board and our reviewing court.
     Id. at 4.
¶3         In a show cause order, the administrative judge noted that the appellant
     previously filed involuntary retirement and denial of restoration appeals with the
     Board, but both were dismissed for lack of jurisdiction.       IAF, Tab 7 at 1-4;
     Johnson v. U.S. Postal Service, 66 M.S.P.R. 604 (1995); Johnson v. U.S. Postal
     Service, MSPB Docket No. DE-0353-10-0501-B-1, Final Order (Feb. 3, 2014),
     aff’d, 529 F. App’x 935 (Fed. Cir. 2014). Accordingly, the administrative judge
     ordered the appellant to show why the instant appeal should not be dismissed
     based upon the doctrine of collateral estoppel. IAF, Tab 7 at 2-4. He also invited
     the appellant to present a restoration claim distinct from that which previously
     had been adjudicated, if applicable. Id. at 3-4.
                                                                                             3

¶4           After the appellant responded to the show cause order, IAF, Tab 8, the
     administrative judge dismissed the instant appeal, IAF, Tab 9, Initial Decision
     (ID). He found that the appellant’s involuntary retirement claim was barred by
     collateral estoppel. ID at 4. He similarly found that the appellant’s restoration
     claim was barred by collateral estoppel. ID at 6. Alternatively, to the extent that
     the appellant intended to bring a separate restoration claim distinct from the one
     previously adjudicated, the administrative judge found that the appellant failed to
     present nonfrivolous allegations of Board jurisdiction.         Id.   The appellant has
     filed a petition for review. Petition for Review (PFR) File, Tab 1. 2 The agency
     has filed a response, and the appellant has replied. PFR File, Tabs 3-4.
¶5           In his petition for review, the appellant appears to argue that the
     administrative judge should have provided him with a hearing. PFR File, Tab 1
     at 1.    We disagree.    As an initial matter, we note that the appellant did not
     unambiguously request a hearing below.              IAF, Tab 1 at 4, Tab 4; see
     generally 5 C.F.R. § 1201.24(e) (providing that the right to a hearing before the
     Board is waived if an appellant fails to timely request a hearing).               On the
     pertinent appeal form, the appellant selected both “yes” and “no” in response to
     whether he wanted a hearing, including a note that stated, “Judge may talk to me
     anytime, I’m not good at hearings.” IAF, Tab 1 at 4. Moreover, the appellant
     was not entitled to a hearing, even if he intended to request one.
¶6           The purpose of the doctrine of collateral estoppel is to “relieve parties of
     the cost and vexation of multiple lawsuits, conserve judicial resources, and, by
     preventing inconsistent decisions, encourage reliance on adjudication.” Peartree
     v. U.S. Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v.
     McCurry, 449 U.S. 90, 94 (1980)).           Collateral estoppel may be grounds for


     2
       With his petition for review, the appellant included a copy of the administrative
     judge’s initial decision, as well as a portion of the evidence he submitted below. PFR
     File, Tab 1 at 5-19; e.g., IAF, Tab 1 at 19-21. This decision will exclusively cite to the
     record below, rather than to any duplicate submissions provided on review.
                                                                                          4

     dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a
     prior decision is afforded collateral estoppel effect and the appellant provides no
     other     valid    basis    of   Board    jurisdiction.   Noble    v.   U.S.    Postal
     Service, 93 M.S.P.R. 693, ¶ 11 (2003). It is appropriate when: (1) the 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 the issue
     preclusion is sought had a full and fair opportunity to litigate the issue in the
     prior action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005).
¶7           As the administrative judge correctly noted, the appellant already appealed
     his alleged involuntary retirement before the Board. See Johnson, 66 M.S.P.R.
     604.     That prior involuntary retirement appeal was dismissed for lack of
     jurisdiction because the appellant failed to prove that his retirement was, in fact,
     involuntary.      Id. at 606.    Accordingly, the administrative judge here properly
     found that collateral estoppel applies in the instant appeal because the appellant is
     attempting to raise the voluntariness of his retirement again; the voluntariness
     issue was actually litigated in the prior appeal; the voluntariness determination
     was necessary to the judgment; and he had an adequate opportunity to litigate the
     matter previously.         Therefore, the appellant was not entitled to a hearing
     concerning his alleged involuntary retirement, and the Board need not consider
     arguments and evidence regarding that issue.
¶8           As the administrative judge also correctly noted, the appellant previously
     appealed a denial of restoration as well. The Board dismissed that appeal for lack
     of jurisdiction because, although the agency did deny him restoration in
     April 2010, the appellant failed to prove that he had fully or partially recovered
     from his injury. Johnson, MSPB Docket No. DE-0353-10-0501-B-1, Final Order
     at 2-3. Accordingly, the administrative judge here properly found that collateral
     estoppel applies in the instant appeal to the extent that the appellant is attempting
     to relitigate the agency’s April 2010 denial of his restoration request.           The
                                                                                           5

     April 2010 denial was actually litigated in the prior appeal; it was necessary to
     the judgement; and the appellant had an adequate opportunity to litigate the
     matter in that appeal.    Therefore, the appellant was not entitled to a hearing
     regarding the agency’s April 2010 denial of his restoration request, and the Board
     need not consider arguments and evidence regarding that issue either.
¶9         Although the appellant is precluded from bringing the same restoration
     issue before the Board, the administrative judge informed him that he would be
     entitled to a hearing if he presented nonfrivolous allegations concerning a denial
     of restoration other than the denial that was previously adjudicated. IAF, Tab 7
     at 3-4. Thus, the appellant was tasked with presenting nonfrivolous allegations
     that: (1) he was absent from his position due to a compensable injury; (2) he
     recovered sufficiently to return to duty on a part-time basis, or to return to work
     in a position with less demanding physical requirements than those previously
     required of him; (3) the agency denied a request for restoration other than that
     which was previously adjudicated; and (4) the agency’s denial was arbitrary and
     capricious. 3   See Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10
     (2012); 5 C.F.R. § 1201.57(a)(4), (b).          Although the appellant responded,

     3
       Until recently, an appellant alleging a denial of restoration was required to prove
     Board jurisdiction by preponderant evidence.        Latham v. U.S. Postal Service,
     117 M.S.P.R. 400, ¶ 10 (2012). However, the Board issued a new regulation effective
     March 30, 2015, that adopted a nonfrivolous allegation standard for restoration appeals.
     Practices and Procedures, 80 Fed. Reg. 4,489, 4,496 (Jan. 28, 2015) (codified in
     pertinent part at 5 C.F.R. § 1201.57(a)(4), (b)); Practices and Procedures,
     79 Fed. Reg. 18,658, 18,659-61 (Apr. 3, 2014). Because the appellant filed the instant
     appeal after the March 30, 2015 effective date of that new regulation, he only was
     required to make nonfrivolous allegations of jurisdiction to obtain a hearing on the
     merits. 5 C.F.R. § 1201.57(a)(4), (b); IAF, Tab 1.
     Although the administrative judge provided the appellant with the proper jurisdictional
     elements, he mistakenly cited the former jurisdictional burden of proof, indicating that
     nonfrivolous allegations were required for a jurisdictional hearing and preponderant
     evidence was necessary to prove jurisdiction. IAF, Tab 7 at 3; ID at 5-6. Under the
     correct standard, if the appellant had presented nonfrivolous allegations, he would have
     been entitled to a hearing on the merits, not a jurisdictional hearing. We modify the
     initial decision accordingly.
                                                                                        6

      generally, he failed to meet that standard.     Rather than present nonfrivolous
      allegations concerning the specific jurisdictional elements for a restoration claim,
      the appellant merely repeated earlier assertions that he was forced to retire in
      1992 and the agency should have since restored him. IAF, Tab 8.
¶10         Because collateral estoppel precludes the appellant from relitigating the
      issues previously adjudicated and he has failed to present nonfrivolous allegations
      concerning another denial of restoration, we affirm the administrative judge’s
      decision, which dismissed the instant appeal for lack of jurisdiction, without a
      hearing.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. 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).
            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
                                                                                         7

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono            for     information   regarding   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.




FOR THE BOARD:                                    ______________________________
                                                  Jennifer Everling
                                                  Acting Clerk of the Board
Washington, D.C.
