UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN DOE,

1

Appellant,

v.

PENSION BENEFIT GUARANTY 

CORPORATION,

Agency.

DOCKET NUMBER

DC-0752-14-1130-I-1

DATE: September 29, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

John Doe, Clinton, Maryland, pro se.

Katherine Leong and Paul Chalmers, Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

 1 While the appellant did not request John Doe status in this appeal, we have granted the 

appellant’s request for anonymity in previous Board appeals. Accordingly, we find it 

appropriate to allow the appellant to proceed anonymously and grant her John Doe 

status sua sponte. 

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

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

dismissed this appeal pursuant to 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 

interpretation of statute or regulation 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. 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 and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 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. E.g., Kroeger v. U.S. Postal Service, 865 F.2d 

235, 239 (Fed. Cir. 1988). The Board clarified in McNeil v. Department of 

Defense, 100 M.S.P.R. 146, ¶ 15 (2005), 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. The dismissal of a Board 

appeal on timeliness grounds can be given collateral estoppel effect if the 

elements of that doctrine are established. E.g., Allen v. Office of Personnel 
3

Management, 77 M.S.P.R. 212, 221 n.5 (1998); Nebblett v. Office of Personnel 

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

judge’s dismissal of a prior appeal on the basis of untimeliness, which became the 

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

same Office of Personnel Management reconsideration decision), aff’d, 152 F.3d 

948 (Fed. Cir. 1998) (Table). 

¶3 The appellant previously filed a July 17, 2013 appeal of her May 11, 2011 

removal, which the assigned administrative judge found untimely filed without 

good cause shown. Doe v. Pension Benefit Guaranty Corporation, MSPB Docket 

No. DC-0752-13-1225-I-1, Initial Decision (Nov. 29, 2013); see Initial Appeal 

File (IAF), Tab 4 at 11-30. The appellant filed a petition for review and the 

Board affirmed that initial decision, making it the Board’s final decision on the 

timeliness of the appellant’s appeal of her May 11, 2011 removal. Doe v. Pension 

Benefit Guaranty Corporation, MSPB Docket No. DC-0752-13-1225-I-1, Final 

Order (July 31, 2014); see IAF, Tab 4 at 32-45; 5 C.F.R. § 1201.113(b). This 

appeal, docketed on September 30, 2014, also concerns the appellant’s May 11, 

2011 removal. IAF, Tabs 1, 3, 8. The agency moved to bar the appeal on the 

basis of collateral estoppel. IAF, Tab 4. In his initial decision, the administrative 

judge granted the agency’s motion and barred the appeal on that basis. IAF,

Tab 9, Initial Decision (ID) at 3. 

¶4 In her timely filed petition for review,

3 the appellant contends, among other 

things, that she was denied a hearing and the opportunity to call witnesses. 

Petition for Review (PFR) File, Tab 6 at 2. She mentions the timeliness issue in 

that context, id. at 6, but fails to address the elements of collateral estoppel. 

Moreover, the appellant offers no argument or evidence which could establish

 3 The appellant requested three extensions of the time limit for filing her petition for 

review. Petition for Review (PFR) File, Tabs 1, 3, 5. The Clerk of the Board granted 

the appellant’s first two requests, and she timely filed her petition for review before the 

expiration of the second extension. PFR File, Tabs 2, 4, 6. 
4

that the administrative judge assigned to her prior appeal erred in deciding the 

timeliness issue or that could otherwise show that her prior appeal was either 

timely filed or that could show good cause existed for her delay in filing. The 

agency responds in opposition to the appellant’s petition for review. PFR File,

Tab 8. 

¶5 We agree with the administrative judge that the identical issue of the 

timeliness of the appellant’s appeal of her May 11, 2011 removal was actually 

litigated in her prior appeal, the resolution of that issue was necessary to the 

resulting final judgment in that appeal, and the appellant was fully represented 

therein. ID at 3. Accordingly, we affirm the administrative judge’s dismissal of 

this action as barred by the doctrine of collateral estoppel. 

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

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. 
5

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 an appeal to the 

United States 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board