UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VINH PHAN,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-4324-17-0344-I-1

DATE: June 8, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Vinh Phan, Shawnee, Kansas, pro se.

Duane Bruce, and Randy Butler, Kansas City, Missouri, 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 

applied collateral estoppel and dismissed the instant Uniformed Services 

Employment and Reemployment Rights Act of 1994 (codified as amended at 

38 U.S.C. §§ 4301-4335) (USERRA) appeal for lack of jurisdiction. Generally, 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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 appellant 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 In an earlier individual right of action (IRA) appeal, the appellant 

challenged his nonselection for promotion to a Chemist Technology Based Expert 

position (FDA‐ORA‐16‐MP‐1608876‐SC) on the basis of alleged whistleblower 

reprisal. Phan v. Department of Health and Human Services, MSPB Docket 

No. DE-1221-17-0285-W-1, Initial Appeal File (0285 IAF), Tab 1. Ultimately, 

the administrative judge dismissed that IRA appeal for lack of jurisdiction, and 

the decision became final after neither party filed a petition for review. 0285 

IAF, Tab 19, Initial Decision (0285 ID).

¶3 Because the appellant’s IRA appeal appeared to include a claim of 

discrimination based on uniformed service, the administrative judge separately 

docketed a USERRA appeal. Phan v. Department of Health and Human Services, 

MSPB Docket No. DE-4324-17-0286-I-1, Initial Appeal File (0286 IAF), Tab 1. 

The administrative judge issued an order that explained the corresponding 

jurisdictional burden. 0286 IAF, Tab 3. The appellant responded to the order by 

alleging, inter alia, that the agency discriminated against him based on his 
3

military service when it failed to select him for promotions. 0286 IAF, Tab 4 

at 4. The specific promotions the appellant identified were the aforementioned 

Chemist Technology Based Expert position (FDA‐ORA‐16‐MP‐1608876‐SC), id. 

at 8-9, in addition to a Chemist Residue Testing Expert position (HHS‐FDA‐

ORA‐MP‐12‐632167), id. at 15, a Regulatory Program Expert position (HHS‐

FDA‐2008‐0156), id. at 20, and a Supervisory Interdisciplinary Scientist position 

(FDA‐ORA‐16‐MP‐1596046‐SC), id. at 22. The administrative judge issued a 

decision that dismissed the USERRA appeal for lack of jurisdiction, and the 

decision became final after neither party filed a petition for review. 0286 IAF, 

Tab 13, Initial Decision (0286 ID).

¶4 While his first two appeals were pending, the appellant filed a third appeal, 

in which he again appeared to challenge his nonselections. Phan v. Department 

of Health and Human Services, MSPB Docket No. DE-3443-17-0300-I-1, Initial 

Appeal File (0300 IAF), Tab 1. In that appeal, he attempted to raise allegations 

of prohibited personnel practices other than whistleblower reprisal and uniformed 

service discrimination. Id. The administrative judge dismissed the appeal for 

lack of jurisdiction, and the initial decision became final after neither party filed 

a petition for review. 0300 IAF, Tab 7, Initial Decision (0300 ID).

¶5 The appellant separately filed this, his fourth appeal, challenging his 

nonselection for promotion to the Chemist Technology Based Expert position 

(FDA-ORA‐16‐MP‐1608876‐SC) from his earlier appeals and alleging 

discrimination in violation of USERRA. Phan v. Department of Health and 

Human Services, MSPB Docket No. DE-4324-17-0344-I-1, Initial Appeal File 

(0344 IAF), Tab 1 at 4-5.2 The administrative judge ordered the parties to present 

 

2

In a subsequent pleading, the appellant cited his nonselection for other vacancies as 

circumstantial evidence of the agency discriminating against him based on his 

uniformed service. Two of those vacancies were the same as those presented in his

earlier USERRA appeal, but one vacancy was not previously raised—a Research 

Chemist position (PH-SW-279957-MP). 0344 IAF, Tab 6 at 7, 22. Nevertheless, the 
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argument concerning the applicability of collateral estoppel. 0344 IAF, Tab 4. 

After both parties responded, the administrative judge dismissed the appeal. 

0344 IAF, Tab 11, Initial Decision (0344 ID). He found that collateral estoppel 

did apply, requiring that the instant appeal be dismissed for lack of jurisdiction. 

0344 ID at 3-8. The appellant has filed a petition for review. Phan v. 

Department of Health and Human Services, MSPB Docket No. DE-4324-17-0344-

I-1, Petition for Review (0344 PFR) File, Tab 1. The agency has filed a response 

and the appellant has replied.3 0344 PFR File, Tabs 3-4. 

¶6 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 of 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. Hau v. Department of Homeland 

Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems 

Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). The Board has held that 

collateral estoppel may be grounds for dismissing an appeal for lack of 

jurisdiction if a jurisdictional determination in a prior decision is afforded 

collateral estoppel effect and the appellant provides no other valid basis for Board 

jurisdiction. Id.

¶7 On review, the appellant concedes that he failed to establish jurisdiction 

over his prior USERRA appeal but attributes this to numerous factors, including 

 

appellant did not include a particularized argument about that additional vacancy. He 

merely included it as an example of how he repeatedly has applied for promotions 

without ever being selected.

3

The appellant also filed a motion, requesting permission to submit additional argument 

and evidence. 0344 PFR File, Tab 6. That motion is denied. See 5 C.F.R. 

§ 1201.114(a) (explaining the limited pleadings allowed on review).
5

his lack of legal knowledge, a language barrier, and mental distress. 4 0344 PFR

File, Tab 1 at 4. Therefore, the appellant suggests that he should be allowed to 

proceed in this second USERRA appeal. Id. We disagree. While the appellant 

generally has alleged that he was disadvantaged in the prior appeal, he has not 

identified any persuasive basis for us to refrain from applying collateral estoppel

here. Cf. Milligan v. U.S. Postal Service, 106 M.S.P.R. 414, ¶ 9 (2007) 

(recognizing some limited circumstances when it may be appropriate for the 

Board to not apply collateral estoppel to avoid injustice or the compromise of 

public policy). The application of collateral estoppel remains appropriate. See 

generally Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 336-37 (1995) 

(explaining that collateral estoppel is intended to “relieve parties of the cost and 

vexation of multiple lawsuits, conserve judicial resources, and, by preventing 

inconsistent decisions, encourage reliance on adjudication” (quoting Allen v. 

McCurry, 449 U.S. 90, 94 (1980)). 

¶8 The appellant next argues that the issues raised in the instant appeal are not 

the same as those raised in his earlier USERRA appeal because that earlier appeal 

actually involved allegations concerning veterans’ preference. 0344 PFR File, 

Tab 1 at 4-5. In other words, he seems to suggest that the instant USERRA 

appeal is not precluded by his earlier USERRA appeal because he intended the 

earlier appeal to solely involve the Veterans Employment Opportunities Act of

1998 (VEOA). Again, we are not persuaded. In the earlier USERRA appeal 

concerning his nonselections, the appellant did present allegations concerning 

veterans’ preference, but he also specifically indicated that he “would like to file 

 

4

The appellant’s petition for review contains a medical record showing that he 

underwent a mental health evaluation in August 2017, just after the administrative 

judge issued the initial decision in the instant appeal. 0344 PFR File, Tab 1 at 9 -15. 

Even if we were to consider this new evidence, submitted for the first time on review, 

its relevance to the instant appeal is neither explained nor apparent. It does not 

establish, for example, that the appellant was unable to pursue his appeals before the 

Board.
6

a complaint of discrimination under USERRA.” 0286 IAF, Tab 4 at 4. He went 

on to allege that the agency “knowingly discriminates . . . on the basi[s] of 

military service.” Id. Accordingly, it was appropriate for the administrative 

judge to construe that earlier appeal as a USERRA appeal and provide the 

appellant the opportunity to meet his corresponding burden. The appellant’s 

failure to meet that burden precludes him from trying to do so again in this 

subsequent appeal.

¶9 The appellant’s final argument on review is that he has new evidence that 

was unavailable to him before the close of record in his earlier USERRA appeal. 

0344 PFR File, Tab 1 at 5-6. Like the other arguments, this one does not warrant 

a different result. It appears that the appellant has simply continued to gather 

information concerning his nonselections, notwithstanding the administrative 

judge’s application of collateral estoppel and dismissal of the instant USERRA 

appeal for lack of jurisdiction. For example, the appellant submitted a letter, 

dated after the initial decision, which shows that he filed a Freedom of 

Information Act (FOIA) request with the agency, asking whether certain 

individuals had a history of military service. Id. at 7-8. He also submitted the 

agency’s response, altogether denying the FOIA request. 0344 PFR File, Tab 4 

at 9-10. Despite the appellant’s general assertion that he has new evidence, he 

has not shown that the information contained is new and material, or even related 

to the dispositive issue of collateral estoppel. See Lewis v. Department of 

Defense, 123 M.S.P.R. 255, ¶ 9 (2016) (recognizing that the Board may grant a 

petition for review based on the availability of new and material evidence , but to 

constitute new evidence, the information contained in the documents, not just the 

documents themselves, must have been unavailable despite due diligence when 

the record closed); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) 

(explaining that evidence is material if it is of sufficient weight to warrant an 

outcome different from that of the initial decision).
7

¶10 In sum, the appellant has failed to present any basis for us to disturb the 

administrative judge’s application of collateral estoppel in this, the appellant’s 

second, USERRA appeal concerning his nonselection for promotion.

NOTICE OF APPEAL RIGHTS5

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). 

 

5

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.
8

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: 

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 
9

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 

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 
10

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 

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.6The 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 

 

6

The original statutory provision that provided for judicial revi ew 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 r eview 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. 
11

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. 

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