                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     IONA CALHOUN,                                   DOCKET NUMBER
                  Appellant,                         DC-1221-14-0758-W-1

                  v.

     GENERAL SERVICES                                DATE: July 8, 2015
       ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Iona Calhoun, Silver Spring, Maryland, pro se.

           Floyd Allen Phaup, II, Esquire, Washington, D.C., 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 the appeal based on the doctrine of collateral estoppel. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.        However, we VACATE the initial decision
     dismissing this appeal as barred by the doctrine of collateral estoppel and instead
     DISMISS the appellant’s claims that the agency failed to select her for a GS-14
     position and delayed her promotion to a GS-12 position for lack of jurisdiction.

                                      BACKGROUND
¶2        Prior to her 2005 retirement from federal service, the appellant was
     employed as a GS-13 Management Analyst with the agency. Initial Appeal File
     (IAF), Tab 6 at 19.     She began working at the agency in 1977, following a
     transfer from the Office of Management and Budget (OMB). 2 IAF, Tab 12 at 4.
¶3        In 2007, the appellant filed a complaint against the agency in the U.S.
     District Court for the District of Columbia in which she raised claims of
     discrimination and reprisal.    IAF, Tab 13 at 16-32.       The court granted the
     agency’s motion for summary judgment of these claims.              See Calhoun v.
     Prouty, 643 F. Supp. 2d 87, 92-97 (D.D.C. 2009). The appellant filed an appeal
     2
       During her employment with the agency, the appellant filed several equal employment
     opportunity (EEO) complaints alleging reprisal and discrimination based on race. IAF,
     Tab 13 at 11. In 1993, she entered into a settlement agreement with the agency
     resolving prior EEO complaints. Id. at 11-14. Pursuant to the 1993 settlement
     agreement, the appellant received a promotion to a GS-13 level position and back pay
     retroactive to 1989. Id.
                                                                                       3

     of the district court’s decision with the U.S. Court of Appeals for the District of
     Columbia, which affirmed the summary judgment finding on all but one claim
     relating to her nonselection for a GS-14 position in 2000.         See Calhoun v.
     Johnson, 632 F.3d 1259 (D.C. Cir. 2011). On remand, the parties entered into a
     settlement agreement resolving that claim. IAF, Tab 13 at 49-57. Pursuant to the
     settlement agreement, which the parties signed in 2012, the appellant received a
     promotion to a GS-14 level position retroactive to 2001.          Id. at 50.    The
     settlement agreement contained a dismissal with prejudice of the remanded
     nonselection claim and a global release of all claims against the agency which
     were brought, or could have been brought, by the appellant. Id. at 51-52.
¶4        In 2013, the appellant filed a complaint with the Office of Special Counsel
     (OSC) in which she alleged that the agency denied her merit promotions between
     1977 and 2005 because she had filed an EEO class action complaint in 2001, and
     a grievance with the Federal Labor Relations Authority in 2002. IAF, Tab 6 at
     19-30. After OSC advised the appellant that it had decided to close her case,
     IAF, Tab 1 at 4, she filed the instant individual right of action (IRA) appeal with
     the Board, IAF, Tab 1. In her appeal, the appellant contends that the agency
     delayed her promotion to the GS-12 level for 11 months when she was transferred
     there from OMB in 1977. IAF, Tab 1 at 1. She further alleges that the agency
     refused to select her for a GS-14 level position. Id. The appellant asserts that the
     agency’s actions constituted discrimination and a denial of her civil rights. Id. at
     2.
¶5        The administrative judge issued orders advising the appellant of the
     requirements for establishing Board jurisdiction over an IRA appeal and
     explaining how she could show that her appeal was not barred by collateral
     estoppel or res judicata. IAF, Tabs 3, 11. After providing the parties with the
     opportunity to respond to the orders, and without holding a hearing, the
     administrative judge issued an initial decision dismissing the appeal on the basis
     of collateral estoppel. IAF, Tab 15, Initial Decision (ID).
                                                                                           4

¶6           The appellant timely filed a petition for review and a supplement to her
     petition. Petition for Review (PFR) File, Tabs 1, 2. On review, the appellant
     reiterates her contention that the agency denied her merit promotions between
     1977 and 2005 based on her protected whistleblowing activity. PFR File, Tab 1
     at 7.    She alleges that the claims she has raised in her IRA appeal were not
     addressed in prior settlement agreements or court decisions. Id. at 7, 9. The
     agency has not responded to the petition for review.

                        DISCUSSION OF ARGUMENTS ON REVIEW
     The appeal is not barred by collateral estoppel.
¶7           The Board applies collateral estoppel to determine whether a previous
     adjudication of a jurisdictional issue precludes its relitigation.          McNeil v.
     Department of Defense, 100 M.S.P.R. 146, ¶¶ 15-20 (2005). Collateral estoppel,
     or issue preclusion, 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 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 in that
     action. Id., ¶ 15; see also Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
     (Fed. Cir. 1988)
¶8           Here, the threshold issue of whether the Board has jurisdiction over the
     appellant’s claim that the agency denied her merit promotions in reprisal for her
     whistleblowing activity was not previously litigated.       Given that the threshold
     issue in this proceeding is not identical to the ones previously litigated and
     adjudicated, collateral estoppel does not bar the appeal.              See Mercer v.
     Department of Health & Human Services, 82 M.S.P.R. 211, ¶¶ 6-7 (1999)
     (finding that collateral estoppel would not bar an appeal under chapter 75 if the
     appellant’s status as a probationary employee was not decided in her prior appeal
                                                                                            5

      of her termination, which was dismissed for lack of jurisdiction); McLaughlin v.
      Department of the Navy, 76 M.S.P.R. 481, 484 (1997) (finding that collateral
      estoppel did not apply where the jurisdictional issue in the first appeal was not
      identical to that in the second appeal).
¶9          Accordingly,    we   vacate   the    administrative   judge’s   initial   decision
      dismissing the appeal on the basis of collateral estoppel. As discussed below,
      however, we find that the appeal should be dismissed on other grounds.

      The appellant’s claim that the agency failed to select her for a GS-14 position is
      dismissed for lack of jurisdiction, based on the waiver provision of the 2012
      settlement agreement.
¶10         The Board will consider a settlement agreement, even though it was reached
      outside of a Board proceeding, to determine its effect on the Board appeal and
      any waiver of Board appeal rights. Lee v. U.S. Postal Service, 111 M.S.P.R. 551,
      ¶ 4 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010). Such a waiver is valid if its
      terms are comprehensive, freely made, and fair, and execution of the waiver did
      not result from agency duress or bad faith. Id.
¶11         The appellant does not dispute that, in 2012, the parties executed a
      settlement agreement in district court resolving her 2000 nonselection for a
      GS-14 position. IAF, Tab 13 at 49-57. Rather, she contends on review that the
      2012 settlement agreement does not encompass any of the claims she raises in her
      Board appeal. PFR File, Tab 1 at 7, 9. We disagree.
¶12         The 2012 settlement agreement states, inter alia, as follows:
                6. Release. This Stipulation provides for the full and complete
            satisfaction of all claims which have been or could have been
            asserted by plaintiff in the above-referenced civil action, . . . and
            plaintiff agrees not to hereafter assert any claim or institute or
            prosecute any civil action or other proceeding . . . with respect to any
            event complained of therein . . . .
      IAF, Tab 13 at 52 (emphasis added). While the terms of the settlement agreement
      do not explicitly reference the Whistleblower Protection Act, we find that the
      above-quoted language clearly informed the appellant that she was waiving all
                                                                                             6

      claims that were raised in her civil action before the district court. See Landers v.
      Department of the Air Force, 117 M.S.P.R. 109, ¶ 15 (2011) (finding that the
      appellant waived her right under a settlement agreement to file a claim under the
      Uniformed Services Employment and Reemployment Rights Act of 1994
      (USERRA) even where the terms of the agreement did not specifically reference
      USERRA). The appellant’s contention that the agency failed to select her for a
      GS-14 level position is a claim that was raised in the context of her action before
      the district court.     We therefore find that the plain meaning of the settlement
      agreement’s terms encompasses this claim, and that the appellant waived her right
      under the agreement to raise this claim in an appeal before the Board.                See
      Lee, 111 M.S.P.R. 551, ¶ 7 (finding that a claim that arose prior to the execution
      of a settlement agreement was waived under the agreement’s general release of all
      employment claims).
¶13         We further find that the appellant’s waiver of Board appeal rights regarding
      this claim is enforceable.         Id., ¶ 8.    The settlement agreement provided the
      appellant with 21 days to consider its terms and advised her to consult with an
      attorney   prior   to    signing    the   agreement.     IAF,   Tab   13   at   51;   see
      Landers, 117 M.S.P.R. 109, ¶ 15.               The agreement was signed both by the
      appellant and her attorney, and stated that “[e]ach signatory to this Stipulation
      represents and warrants that he or she is fully authorized to enter into this
      Stipulation.” IAF, Tab 13 at 56. Moreover, the appellant does not dispute that
      the settlement agreement was freely made, was fair, and was not the result of
      agency duress or bad faith.          See Lee, 111 M.S.P.R. 551, ¶ 9.       Further, the
      agreement reflects that the agency provided consideration to the appellant in
      exchange for her waiver. IAF, Tab 13 at 49-51; see Lee, 111 M.S.P.R. 551, ¶ 9.
¶14         In sum, we find that the 2012 settlement agreement reached in the district
      court proceeding encompassed the appellant’s claim that the agency failed to
      select her for a GS-14 position, that she knowingly and voluntarily signed the
      settlement agreement, that the appellant waived her Board appeal rights
                                                                                           7

      concerning her failure to be selected for a GS-14 position, and that the waiver is
      enforceable. 3 As a result, we dismiss this claim for lack of jurisdiction.

      The appellant’s claim that the agency delayed her promotion to a GS-12 position
      in reprisal for her whistleblowing activity is also dismissed for lack of
      jurisdiction.
¶15         The Board has jurisdiction over an IRA appeal if the appellant exhausts her
      administrative remedies before OSC and makes nonfrivolous allegations that:
      (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8), or
      engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
      (C), or (D); and (2) the disclosure or protected activity was a contributing factor
      in the agency’s decision to take or fail to take a personnel action as defined
      by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department
      of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).           If the appellant
      satisfies each of these jurisdictional requirements, she has the right to a hearing
      on the merits of her claim.      Kukoyi v. Department of Veterans Affairs, 111
      M.S.P.R. 404, ¶ 10 (2009).
¶16         Here, the appellant has alleged that her protected whistleblowing activity
      occurred in 2001 and 2002.       Therefore, it could not have been a contributing
      factor in the agency’s failure to timely promote her to a GS-12 level position 24
      or 25 years later in 1977. IAF, Tab 6 at 19-30; see Rumsey v. Department of
      Justice, 120 M.S.P.R. 259, ¶ 27 (2013) (disclosures made after the agency took
      the personnel actions at issue cannot have been contributing factors).
      Accordingly, we find that the appellant has failed to make a nonfrivolous
      allegation that the Board has jurisdiction over her claim that the agency failed to
      timely promote her to a GS-12 position in 1977. We thus dismiss her IRA appeal




      3
        Paragraph 5 of the settlement agreement expressly indicates that the U.S. District
      Court for the District of Columbia will retain jurisdiction to enforce the terms of the
      agreement. IAF, Tab 13 at 52.
                                                                                        8

for      lack    of   jurisdiction.       See        Simmons       v.   Small    Business
Administration, 115 M.S.P.R. 647, ¶¶ 13-14 (2011).

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
        This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113. You have the right to request the United States
Court of Appeals for the Federal Circuit to review this final decision.
        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 want to request review of the Board’s decision concerning your
claims     of   prohibited   personnel   practices    under    5    U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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.
                                                                                      9

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 about the United States Court of Appeals for the Federal
Circuit 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 your appeal to
the 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:                                   ______________________________
                                                 William D. Spencer
                                                 Clerk of the Board
Washington, D.C.
