UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

AYOUB TARTIR,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DC-0752-14-0577-I-1

DATE: August 14, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Ayoub Tartir, Glen Burnie, Maryland, pro se.

Kathy G. Jones, Beltsville, Maryland, 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, which 

dismissed his appeal alleging an improper removal in September 2008 on the 

grounds that relitigation of the timeliness of the appeal was barred under the 

doctrine of collateral estoppel. Generally, we grant petitions such as this one 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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). 

BACKGROUND

¶2 The appellant filed this appeal on April 9, 2014, alleging that he was 

improperly removed from his position as an IT Specialist in September 2008. 

Initial Appeal File (IAF), Tab 1. The appellant had previously filed an appeal of

the same 2008 removal, and that appeal was dismissed in 2009 as untimely filed. 

See Tartir v. Department of Agriculture, MSPB Docket No. DC-0752-09-0247-

I-1, Initial Decision (Feb. 3, 2009); IAF, Tab 7 at 8-14. The appellant did not 

request review of that decision by the Board or the U.S. Court of Appeals for the 

Federal Circuit; instead more than 5 years later, he filed this new appeal. The 

administrative judge dismissed this appeal on the grounds of collateral estoppel. 

IAF, Tab 11, Initial Decision. The judge had issued an order to show cause why 

the appeal should not be barred on issue preclusion, but the appellant did not 

address this issue in any of his three responsive pleadings filed prior to the initial 

decision, submitting only evidence apparently contesting the appropriateness of 
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the agency’s personnel actions during his employment. See IAF, Tabs 5, 6, 8, 9. 

The appellant filed a petition for review, denying all agency charges against him 

in the 2008 removal and requesting additional review of his case, but making no 

substantive legal argument concerning the administrative judge’s application of 

collateral estoppel. Petition for Review (PFR) File, Tab 1 at 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶3 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 have 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 also Nebblett v. Office of 

Personnel Management, 73 M.S.P.R. 342, 347 & n.2 (1997) (finding that the 

administrative judge’s dismissal of the appeal on the basis of untimeliness, which 

became the Board’s final decision, was a collateral estoppel bar to an appeal of 

the same OPM reconsideration decision), aff’d, 152 F.3d 948 (Fed. Cir. 1998).

¶4 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 
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regarding the timeliness of his appeal of the 2008 removal, and that he is thus 

precluded from relitigating this issue. The matter previously adjudicated, the 

untimeliness of the appeal from his 2008 removal, is identical to the issue in the 

instant appeal. The timeliness issue was actually litigated in the 2009 appeal, and 

that timeliness determination was necessary to the resulting judgment. The 

appellant has filed five pleadings after the show cause order but has never 

addressed the issue of collateral estoppel, nor has he made a substantive argument 

of good cause for the untimeliness of his 2009 appeal. See IAF, Tabs 6, 8, 9; PFR 

File, Tabs 1, 4. The appellant argued merely that he was “busy” studying at the 

time of the original 2009 appeal and that he was currently applying for federal 

employment that would investigate his prior work experience. IAF, Tab 6 at 3. 

The record shows that he submitted over thirty pages of evidence, addressing only 

his work experience at the agency, his education records, and a summary of 

personnel actions taken against him. IAF, Tab 9. As argued by the agency, the 

appellant has failed to address the issue of collateral estoppel in any way or argue 

legal error in the findings of the administrative judge in the initial decision. See

IAF, Tab 7; PFR File, Tab 3. Moreover, the appellant offered no explanation of 

why he waited more than 5 years to file a second appeal of the removal action. 

Therefore, the doctrine of collateral estoppel precludes the adjudication of the

timeliness of the appeal of the agency’s removal action.

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
5

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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board