UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

AYOUB TARTIR, Appellant,

v.
DEPARTMENT OF AGRICU LTURE, 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### THIS FINAL ORDER IS NONPRECEDENTIAL *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 ground s 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* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

only when: the initi al 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 o f 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 pe titioner’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. Therefo re, 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 remo ved from his position as an IT S pecialist in September 2008. Initial Appeal File (IAF), Tab 1. The appellant had previously filed an appeal of
the sa me 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 deci sion by the Board or the U.S. Court of A ppeals for the Federal Circuit; in stead more than 5 years later, he filed this new appeal. T he administrative judge dismissed this appeal on the grounds of collateral estoppel. IAF, Tab 11 , Initial Decision

. The judge ha d 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 appar ently contesting the appropriateness of3

the agency’s personnel action s 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 ARGUME NTS ON REVIEW ¶3 Collateral estoppel, or issue preclusion, is a ppropriate 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 Boar d 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 on e whose interests were otherwise fully represented. 100 M.S.P.R. 146 , ¶ 15 (2005). T he dismissal of a Board appeal on timeliness grounds can be given collateral estoppel e ffect 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 estop pel insofar as the appellants did not present different bases for a finding of goo d cause for the delayed filing); see als o 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
bec ame 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. C ir. 1998). ¶4 We conclude that the appellant has not shown error in the administrative judge’s finding that the elements of collateral esto ppel have been met in this case4

regarding the timeliness of his appeal of the 2008 removal, and that he is thus preclude d 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 i ssue was actually litigated in the 2009 appeal, and
that timeliness determination was neces sary 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 mad e a substantive argument of good cause for the untimeliness of his 2009 appeal. Se e 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

em ployment 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 tak en 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 APPELL ANT 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 follow ing address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 204395

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 dis missed. 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, 2 012). 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 c ourt 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