UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DIETER STUSSY,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

SF-1221-17-0095-W-1

DATE: June 28, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Dieter Stussy, Las Vegas, Nevada, pro se.

Mikel C. Deimler, Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal as barred by collateral 

estoppel. Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

or the erroneous application of the law to the facts of the case; the 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. 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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant, an Internal Revenue Service employee, was removed in 

1993. His grievance of that matter was resolved by a 1994 settlement agreement 

pursuant to which his removal was changed to a resignation, effective 

February 15, 1994. In February 2012, he applied for disability retirement under 

the Federal Employees’ Retirement System, but the Office of Personnel 

Management (OPM) dismissed his application as untimely filed. On appeal, a 

Board administrative judge affirmed OPM’s decision, the full Board denied the 

appellant’s petition for review of the decision, Stussy v. Office of Personnel 

Management, MSPB Docket No. SF-844E-13-0168-I-1, Final Order at 2, 6 

(May 7, 2014), and the U.S. Court of Appeals for the Federal Circuit affirmed the 

Board’s decision, Stussy v. Office of Personnel Management, 662 F. App’x 972 

(Fed. Cir. 2016); Petition for Review (PFR) File, Tab 1 at 19.

¶3 On November 4, 2013, the appellant filed an IRA appeal alleging, inter alia,

that, in retaliation for his whistleblowing activities, the agency conspired to 

remove him in 1993 and entered into an invalid settlement agreement in 1994,

rendering his resignation involuntary. Finding that the appellant failed to 
3

establish exhaustion and otherwise satisfy the jurisdictional requirements for an 

IRA appeal, the administrative judge dismissed it. Stussy v. Department of the 

Treasury, MSPB Docket No. SF-1221-14-0068-W-1, Initial Decision at 9-10 

(Mar. 26, 2014); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 

(Fed. Cir. 2001) (holding that the Board has jurisdiction over an IRA appeal if the 

appellant has exhausted his or her administrative remedies before the Office of 

Special Counsel (OSC) and makes nonfrivolous allegations that (1) he engaged in 

whistleblowing activity by making a protected disclosure, and (2) the disclosure 

was a contributing factor in the agency’s decision to take or fail to take a 

personnel action). On review, the full Board affirmed the initial decision but

modified it to dismiss as untimely the appellant’s IRA claim that he exhausted his 

remedy with OSC in 1997 and 1998, and to find that the reason the Board lacks

jurisdiction over his claim that his resignation was involuntary is that he elected 

to first challenge that matter through the negotiated grievance procedure. Stussy 

v. Department of the Treasury, MSPB Docket No. SF-1221-14-0068-W-1, Final 

Order at 4-5, 7-8 (June 23, 2015). Despite the Board’s guidance as to how the 

appellant could challenge its decision, he sought review at the Equal Employment 

Opportunity Commission, which denied consideration of the petition. His 

subsequent filing with the Federal Circuit was dismissed as untimely filed. Stussy 

v. Merit Systems Protection Board, No. 2016-1553 (Fed. Cir. June 22, 2016); 

Initial Appeal File (IAF), Tab 7 at 9. 2

 

2 On December 1, 2015, the appellant filed another IRA appeal in which he alleged that 

the Board’s administrative judge retaliated against him by ruling against him in his 

disability retirement appeal after he disclosed alleged misconduct by OPM counsel and 

the administrative judge himself. The administrative judge in this IRA appeal 

dismissed the case for lack of jurisdiction, finding that the appellant failed to 

nonfrivolously allege that he was subjected to a personnel action, Stussy v. Merit 

Systems Protection Board, MSPB Docket No. SF-1221-16-0142-W-1, Initial Decision 

(Dec. 23, 2015), and the full Board denied the appellant’s petition for review of that 

decision, Stussy v. Merit Systems Protection Board, MSPB Docket No. SF-1221-16-

0142-W-1, Final Order (May 27, 2016).
4

¶4 In this current IRA appeal, the appellant challenged a number of these same

matters, including the merits of his 1993 removal, the voluntariness of his 1994 

resignation, and the validity of the settlement agreement that preceded it, and he 

again appeared to allege that the agency retaliated against him because of his 

whistleblowing activity. IAF, Tab 1 at 9-12. With his appeal, he submitted a 

copy of an OSC complaint he filed on August 12, 2016, seeking to reopen his 

previous complaint, id. at 34-41, and a September 30, 2016 letter he received 

from OSC regarding his filing, id. at 32-33. He requested a hearing. Id. at 1. In 

acknowledging the appeal, the administrative judge referred the appellant to his 

prior appeals and directed him to show why this appeal should not be dismissed 

as precluded by collateral estoppel, and he also directed the appellant to provide 

evidence and argument showing that he exhausted his remedy before OSC. IAF, 

Tab 3. The appellant responded, IAF, Tab 6, and, in its response, the agency 

urged that the appeal be dismissed for lack of jurisdiction, IAF, Tab 7.

¶5 In his initial decision based on the written record, the administrative judge

dismissed the appellant’s appeal. IAF, Tab 8, Initial Decision (ID) at 1, 8. The 

administrative judge first considered the September 30, 2016 OSC letter which, 

he found, merely advised the appellant that it had no basis to further investigate 

his allegations challenging his removal but did not indicate that it was reopening 

his previous complaints so as to extend his deadline for filing an IRA appeal with 

the Board. Cf. Hawker v. Department of Veterans Affairs, 123 M.S.P.R. 62, ¶ 7 

(2015) (holding that a decision by OSC to reopen its investigation deprives its 

initial close-out determination of the requisite finality needed for purposes of 

seeking Board review). As such, the administrative judge found that the 

appellant’s 1997 and 1998 complaints that the Board found to be untimely by 

15 years remain so. ID at 4-6. The administrative judge further found, based on 

the Board’s decision in Stussy v. Department of the Treasury, MSPB Docket 

No. SF-1221-14-0068-W-1, Final Order (June 23, 2015), that the appellant’s 

remaining claims were barred by collateral estoppel. ID at 6-8.
5

¶6 The appellant has filed a petition for review, PFR File, Tab 1, to which the 

agency has responded in opposition, PFR File, Tab 3, and the appellant has filed a 

reply, PFR File, Tab 4.

ANALYSIS

¶7 On review, the appellant argues that neither res judicata nor collateral 

estoppel applies to bar consideration of his claims. PFR File, Tab 1 at 4-8. 

Although the agency argued below that the appellant’s appeal is barred by res 

judicata, IAF, Tab 6 at 5-7, the administrative judge did not rely on that doctrine, 

but rather on collateral estoppel, to dismiss the appellant’s appeal. ID at 6-8. 

Therefore, we need not address whether the appellant’s appeal is barred by res 

judicata, which has different criteria. Peartree v. U.S. Postal Service, 

66 M.S.P.R. 332, 337 (1995).

¶8 Collateral estoppel 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 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). The administrative judge 

found that these criteria apply to the appellant’s claims regarding the rescinded 

1993 removal, the invalidity of the 1994 settlement agreement, and the agency’s 

alleged violation of that agreement. ID at 6-8. As noted, the Board in Stussy v. 

Department of the Treasury, MSPB Docket No. SF-1221-14-0068-W-1, found 

that the claims related to the 1993 removal were not timely raised to the Board 

following the appellant’s receipt of OSC’s closure letters, and that the 

administrative judge properly found that the Board lacks jurisdiction over the 

appellant’s alleged involuntary resignation claim because he elected to pursue 

that matter through the negotiated grievance procedure. Final Order at 5-8. 

These jurisdictional and timeliness findings made in that decision bar the 
6

appellant, under the doctrine of collateral estoppel, from raising the se same

claims again in this appeal. See Ford v. U.S. Postal Service, 118 M.S.P.R. 10, 

¶ 11 (2012).

¶9 The appellant also alleges bias on the part of the administrative judge as to

a number of matters. PFR File, Tab 1 at 10-14. Some of the appellant’s 

allegations relate to actions of the administrative judge in prior appeals (claims 

#1, 2, 3, and 5) and they are therefore not relevant to this appeal. The appellant’s 

assertions regarding the administrative judge’s actions in this case include his 

denying sufficient time for discovery (claim #1), “being insubordinate to [the 

Federal Circuit] in entering his judicially estopped decision and thus denying the 

appellant’s claim” (emphasis in original) (claim #4), mischaracterizing OSC’s 

correspondence (claim #6), and being “derelict in his duties” by stating that the 

appellant’s challenge to the review rights the Board provided in its 2015 Final 

Order is a matter more appropriately addressed to the Federal Circuit (claim #7). 

These allegations of bias appear to be based only on rulings made during this 

proceeding and findings made in the initial decision. Such rulings and findings, 

even if erroneous, do not establish bias sufficient to warrant recusal. See King v. 

Department of the Army, 84 M.S.P.R. 235, ¶ 6 (1999); Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that, in making a claim of 

bias or prejudice against an administrative judge, a party must overcome the 

presumption of honesty and integrity that accompanies administrative 

adjudicators). 

¶10 Finally, the appellant alleges that the administrative judge abused his 

discretion by not allowing the appellant to reply to the agency’s response to the 

administrative judge’s order to show cause. PFR File, Tab 1 at 10-12. In that 

November 18, 2016 Order, the administrative judge directed the appellant to 

respond to the res judicata/collateral estoppel issue such that the Board and the 

agency received his submission within 10 calendar days (by November 28). IAF, 

Tab 3. The administrative judge stated that the agency’s response had to be 
7

received within 19 calendar days (by December 7), and that the record would 

close on that date, unless the agency submitted new evidence or argument just 

before the close of the record, in which case the appellant could respond by a 

further filing received within 24 calendar days (by December 12). Id. The record 

reflects that the agency did file its response to the administrative judge’s order on 

December 7, 2016, IAF, Tab 7, and that, therefore, the appellant had 5 days in 

which to submit a final filing, but did not do so. The appellant has not explained 

why he did not attempt to make any further filing after the agency filed its 

response to the administrative judge’s order, or identified what additional 

evidence or argument he was unable to submit. Rather, he argues that the 

administrative judge’s scheduling precluded him from pursuing meaningful 

discovery. PFR File, Tab 1 at 10-11. However, he has not argued that he was 

attempting to pursue discovery in this case, despite the administrative judge’s 

November 17, 2016 acknowledgment order describing the Board’s discovery 

procedures. IAF, Tab 2. Administrative judges have broad authority to govern 

the proceedings before them. 5 C.F.R. § 1201.41(b); see Morrison v. Department 

of the Navy, 122 M.S.P.R. 205, ¶ 12 (2015). Under the circumstances, we find 

that the appellant has not shown that the administrative judge abused his 

discretion regarding the scheduling set forth in the show cause order. 

¶11 We have considered the remaining matters to which the appellant has 

referred on review, including his 1996 “Tucker Act District Court case,” PFR 

File, Tab 1 at 8-9; the merits of his whistleblower claim, id. at 14-15; and the 

2007 guilty plea of his former fourth-level supervisor, id. at 15-16, but find that 

none of these matters has any bearing on the propriety of the initial decision here 

under review.

¶12 Accordingly, we affirm the initial decision.
8

NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 
10

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
11

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction.4The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
12

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board