UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT NEWTON,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-15-0300-I-1

DATE: November 10, 2015 

THIS ORDER IS NONPRECEDENTIAL1

Gary Avery, Temple Hills, Maryland, for the appellant.

Andrea L. Geiger and Joseph Moore, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his appeal as barred by the doctrine of collateral estoppel. For the 

reasons discussed below, we GRANT the petition for review, VACATE the initial 

decision, and REMAND the case to the regional office for further adjudication in 

accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 The appellant resigned from his employment with the agency in 

August 2012. Initial Appeal File (IAF), Tab 1 at 6. On December 30, 2014, he 

filed a Board appeal in which he alleged that the agency discriminated against 

him by implanting radio frequency identification (RFID) devices on his body

without his consent to track, follow, and harass him, denied him a within-grade 

increase, and forced him to resign on August 6, 2012. 2

 Id. at 3, 8-9, 15-35. On 

his appeal form, the appellant indicated that he filed a whistleblower reprisal 

complaint with the Office of Special Counsel (OSC) on August 9, 2014, but had 

not received notification that OSC had terminated its investigation. Id. at 4. 

Attached to his appeal form, the appellant submitted what appears to be his OSC 

complaint, in which he alleged that the agency took various personnel actions 

against him in retaliation for his whistleblowing activities, violated a number of 

laws and merit systems principles, and committed prohibited personnel practices.

Id. at 3, 12-35. Finally, the appellant contended that the agency engaged in hiring 

practices that violated the requirements of veterans’ preference statutes. Id.

at 34-35.

¶3 Because it appeared that the Board previously had adjudicated these issues,

see Newton v. Department of the Navy, MSPB Docket No. DC-0752-14-0148-I-1, 

Final Order (May 7, 2014) (0148 Final Order), the administrative judge ordered 

the appellant to show cause why his appeal should not be dismissed as barred by 

res judicata or collateral estoppel. IAF, Tab 3. In response, the appellant 

contended that his allegations relating to the RFID devices arose from scans of 

his body that post-dated his prior appeal, as reflected in a May 28, 2014 report 

from an expert that he retained. IAF, Tab 4 at 4, 8-12. The appellant also argued 

that the doctrine of collateral estoppel was inapplicable because OSC had 

accepted his “recent whistleblower complaint due to newer findings of Prohibited 

 2 The appellant indicated on his appeal form that he is appealing his involuntary 

retirement, but his Standard Form 50 indicates that he resigned. IAF, Tab 1 at 6.
3

Personnel Practices and violations of Merit System Principles.” IAF, Tab 4 at 4, 

6, Tab 12 at 7.

¶4 The appellant also submitted a copy of a September 22, 2014 final agency 

decision (FAD) on an equal employment opportunity (EEO) complaint in which 

he alleged, among other things, that he was subjected to harassment as a result of 

the RFID devices and other agency actions, which forced him to resign on 

August 6, 2012. 3

 IAF, Tab 4 at 33-46. The agency’s FAD treated the appellant’s 

complaint as a mixed-case complaint and notified him of his right to file a Board 

appeal within 30 calendar days of his receipt of the FAD. Id. at 34. 

¶5 The agency replied to the appellant’s response to the show cause order, 

asserting that he was collaterally estopped from raising claims related to the 

RFID devices because those claims previously were litigated and decided by the 

Board. IAF, Tab 11 at 5. The agency further argued that, to the extent the 

appellant was attempting to appeal the FAD, he had received it on September 29, 

2014, and, thus, his December 30, 2014 Board appeal was untimely filed. Id.

at 6-7, 11. Without holding the appellant’s requested hearing, the administrative 

judge dismissed the appeal as barred by collateral estoppel. IAF, Tab 1 at 2, 

Tab 13, Initial Decision (ID) at 5. 

¶6 The appellant has filed a petition for review in which he asserts that he has 

new and material evidence consisting of a February 1, 2015 addendum to the 

May 28, 2014 expert report concerning scans of his body to test for the presence 

of RFID devices. 4

 Petition for Review (PFR) File, Tab 1 at 4-7, 13-43. The 

agency has responded to the appellant’s petition. PFR File, Tab 4. 

 3 In response to the show cause order, the appellant also submitted pleadings that did 

not address the issues of res judicata or collateral estoppel. See IAF, Tabs 5, 8.

4 Even if such evidence could be considered new, we would find that it is not material 

to the outcome of this appeal because it does not pertain to the dismissal of the 

appellant’s claims as barred by collateral estoppel or otherwise establish Board 

jurisdiction. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(holding that the Board will not grant a petition for review based on new evidence 
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 An initial decision must identify all material issues of fact and law, 

summarize the evidence, resolve issues of credibility, and include the 

administrative judge’s conclusions of law and his legal reasoning, as well as the 

authorities on which that reasoning rests. Spithaler v. Office of Personnel 

Management, 1 M.S.P.R. 587, 589 (1980). Here, in concluding that the appeal 

was barred by collateral estoppel, the administrative judge improperly limited the 

appeal solely to the issue of the agency’s alleged implanting of RFID devices on 

the appellant’s body without identifying and addressing all of the claims raised by 

the appellant. Accordingly, as set forth below, we remand the appeal for further 

adjudication. On remand, the administrative judge should provide specific notice 

to the appellant of his burdens of proof regarding each of his claims, discussed 

below, allow the parties to submit evidence and argument, hold a hearing if 

appropriate, and issue a new initial decision.

The administrative judge failed to adjudicate the appellant’s whistleblower 

reprisal claim.

¶8 The Board has jurisdiction over an individual right of action (IRA) appeal if

the appellant has exhausted his administrative remedies before OSC and makes 

nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C. 

§ 2302(b)(8), or engaged in protected activity described under 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity 

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

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 

1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. 

Cir. 2001). Here, the appellant indicated on his appeal form that he had filed a 

whistleblowing complaint with OSC on August 9, 2014, and referenced an 

attached letter to OSC regarding agency prohibited personnel practices and 

 

absent a showing that it is of sufficient weight to warrant an outcome different from 

that of the initial decision).
5

violations of merit system principles. IAF, Tab 1 at 3-4, 12-35. The appellant 

also referenced his recent OSC complaint in subsequent pleadings. IAF, Tab 12 

at 7, 10. 

¶9 In light of the aforementioned, we find that the administrative judge should 

have provided the appellant with notice of how to establish jurisdiction as a 

whistleblower. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 

643-44 (Fed. Cir. 1985) (holding that an appellant must receive explicit 

information on what is required to establish an appealable jurisdictional issue); 

IAF, Tab 2 at 2, Tab 3. Without Burgess notice, the parties did not submit 

responses with evidence and argument on the jurisdictional issue and, 

consequently, the record was not fully developed on this issue. See Rodriguez v. 

Department of Homeland Security, 112 M.S.P.R. 446, ¶ 11 (2009). Because this 

error was prejudicial to the appellant’s substantive rights, it was harmful and 

must be corrected. See Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 

566, ¶ 18 (2010).

5 Accordingly, we remand the appeal for further adjudication of 

the appellant’s whistleblower reprisal claim. 

The administrative judge failed to adjudicate the appellant’s claim of a potential 

Veterans Employment Opportunity Act of 1998 (VEOA) violation.

¶10 The Board has jurisdiction over an agency action that violates a statutory or 

regulatory provision relating to veterans’ preference or that interferes with a 

veteran’s right to compete. 5 U.S.C. §§ 3330a(a)(1), (d)(1)-(2), 3330c; 

3304(f)(1). To establish Board jurisdiction over a veterans’ preference appeal, an 

appellant must (1) show that he exhausted his remedy with the Department of 

Labor (DOL), and (2) make nonfrivolous allegations that (i) he is a preference 

 5 Although the agency acknowledged the appellant’s whistleblower claim in its response 

to the show cause order, see IAF, Tab 11 at 6, it did not set forth the burdens and 

elements of proof for this claim either as an IRA appeal or an affirmative defense and 

thus, its response was insufficient to inform the appellant of what he needed to allege 

regarding jurisdiction, see Guzman, 114 M.S.P.R. 566, ¶ 18.
6

eligible within the meaning of the VEOA,

6 (ii) the action(s) at issue took place on 

or after the October 30, 1998 enactment date of the VEOA, and (iii) the agency 

violated his rights under a statute or regulation relating to veterans’ preference. 

5 U.S.C. § 3330a; Abrahamsen v. Department of Veterans Affairs, 94 M.S.P.R. 

377, ¶ 6 (2003). To establish Board jurisdiction over a right-to-compete appeal

under VEOA, an appellant must (1) show that he exhausted his remedy with DOL,

and (2) make nonfrivolous allegations that (i) he is a veteran within the meaning 

of 5 U.S.C. § 3304(f)(1), (ii) the action at issue took place on or after the 

December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of 

2004, and (iii) the agency denied him the opportunity to compete under merit 

promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce in violation of 5 U.S.C. 

§ 3304(f)(1). Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 

(2010).

¶11 Here, the appellant alleged that the agency violated veterans’ preference 

requirements and engaged in nepotism when it hired, promoted, and advocated 

the hiring and promoting of relatives. IAF, Tab 1 at 34. The appellant further 

asserted that the agency hired certain recruits in an effort to violate veterans’ 

preference laws. Id. The appellant’s allegations should have been considered as 

an appeal under VEOA. As such, he must receive explicit information on what is 

required to establish jurisdiction over a VEOA claim. See Burgess, 758 F.2d 

at 643-44. Accordingly, we remand the appeal for further adjudication of the 

appellant’s potential VEOA claim. 

 6 The appellant denied on his appeal form that he is preference eligible. IAF, Tab 1 

at 1. Nonetheless, in light of our decision to remand the appeal and the appellant’s pro 

se status, the administrative judge should provide him with the opportunity on remand

to nonfrivolously allege whether he is preference eligible. 
7

The administrative judge failed to adjudicate the appellant’s claim that he was 

constructively removed.

¶12 An employee-initiated action, such as a retirement or resignation, is 

presumed to be voluntary and thus outside the Board’s jurisdiction. Vitale v. 

Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). If involuntary, 

however, it is equivalent to a forced removal and therefore is within the Board’s 

jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 

(Fed. Cir. 2006). An appellant who claims that his retirement or resignation was 

involuntary may rebut the presumption of voluntariness in a variety of ways, for 

example, by showing that under the totality of the circumstances, the working 

conditions were made so intolerable by the agency that a reasonable person in the 

employee’s position would have felt compelled to leave. Wright v. Department of 

Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000). Jurisdiction is established in 

constructive adverse action appeals by showing: (1) the employee lacked a 

meaningful choice in the matter; and (2) it was the agency’s wrongful actions that 

deprived the employee of that choice. Morrison v. Department of the Navy, 

122 M.S.P.R. 205, ¶ 5 (2015). 

¶13 The record below reflects that the appellant asserted an involuntary 

retirement claim on his appeal form. IAF, Tab 1 at 3. Similarly, the appellant

claimed in his EEO complaint that he was forced to resign due to the agency’s 

harassment of him with RFID devices. IAF, Tab 4 at 38. The administrative 

judge, however, failed to provide the appellant with notice of his jurisdictional 

burden with respect to this claim. See Burgess, 758 F.2d at 643-44; IAF, Tab 2 

at 2, Tab 3. Accordingly, we remand the appellant’s constructive removal claim 

for further adjudication. 

The administrative judge failed to adjudicate the appellant’s claim that he was 

denied a within-grade increase (WIGI).

¶14 The Board has jurisdiction over a denial of a WIGI. See 5 C.F.R. 

§ 1201.3(a)(8). An employee ordinarily is not entitled to appeal the denial of a 

WIGI to the Board unless he first has timely sought and received a 
8

reconsideration decision from the agency. 5 U.S.C. § 5335(c); 5 C.F.R. 

§ 531.410(d); see Goines v. Merit Systems Protection Board, 258 F.3d 1289, 1292 

(Fed. Cir. 2001).

¶15 Here, although the appellant indicated that he was attempting to appeal the 

denial of a WIGI, see IAF, Tab 1 at 3, the administrative judge did not 

acknowledge such a claim, apprise the appellant of how to establish Board 

jurisdiction over it, or address it in the initial decision. Accordingly, we remand 

the appellant’s alleged denial of a WIGI claim. 

We provide the following guidance for the administrative judge on remand.

¶16 After receiving the parties’ responses to his jurisdictional notice or notices, 

on remand, the administrative judge should address the following issues in the 

order he deems appropriate. 

¶17 The administrative judge should determine whether any of the appellant’s 

claims are barred by the doctrines of res judicata or collateral estoppel in light of 

the overlap of some of the issues with those raised by the appellant in his prior 

appeal. See Newton v. Department of the Navy, MSPB Docket No. DC-0752-14-

0148-I-1, Initial Decision (Dec. 20, 2013); 0148 Final Order. In the initial 

decision, the administrative judge found that all of the appellant’s claims were 

barred by collateral estoppel. ID at 5. However, in its final order on the 

appellant’s prior appeal, the Board observed that some issues, such as the 

appellant’s alleged involuntary resignation or retirement and the denial of a 

WIGI, were not properly before the Board because they were not raised below. 

0148 Final Order at 4. Therefore, the administrative judge should revisit the 

issue of preclusion. 

¶18 Regarding the appellant’s whistleblower reprisal claim, the administrative 

judge should address whether the appellant has elected to pursue this claim as a 

direct appeal to the Board, through a negotiated grievance procedure, or in an 

OSC complaint culminating in an IRA appeal. See Savage v. Department of the 

Army, 122 M.S.P.R. 612, ¶ 17 (2015). At this point, it is unclear whether the 
9

appellant has made such an election and, if so, whether the election was knowing 

and voluntary. Id., ¶ 18; see IAF, Tab 1 at 4, 9, 12-35.

¶19 To the extent the record reflects that the appellant may have filed a 

grievance as well an EEO complaint concerning some of the claims at issue in 

this appeal, the administrative judge also should address whether the appellant 

made a binding election of a different forum for pursuing those claims. 5 U.S.C. 

§ 7121(d), (e); see generally Westbrook v. Department of the Air Force, 

77 M.S.P.R. 149, 152-54 (1997) (discussing the remedies under section 7121(d) 

and (e) available for different types of appealable matters). It is unclear from the 

record before us where and when the appellant first raised his constructive 

removal, denial of a WIGI, or other claims.

¶20 In addition, the administrative judge should determine whether the appeal of 

the FAD was timely filed.7

 If an appellant elects to file a Board appeal after 

filing a timely EEO complaint with the agency, such an appeal must be filed 

within 30 days of receiving the FAD. 5 C.F.R. § 1201.154(b)(1). The appellant 

bears the burden of proof regarding timeliness, which he must establish by 

preponderant evidence. Mohammed v. Office of Personnel Management, 

108 M.S.P.R. 609, ¶ 8 (2008); 5 C.F.R. § 1201.56(a)(2)(ii) (Jan. 1, 2015). Here, 

the agency has provided evidence that the FAD was delivered to the appellant via 

certified mail on September 29, 2014. IAF, Tab 11 at 7, 11. The administrative 

judge did not address the FAD, but one of the agency’s pleadings below did. See

id. at 6-7. The appellant submitted a response below addressing the timeliness 

issue, but he apparently did not dispute that he received the FAD on 

 7 The appellant’s claim that he was denied a WIGI does not appear to have been 

addressed in the agency’s FAD, see IAF, Tab 4 at 33-46, and it is not clear if the 

appellant raised this claim during the EEO process, see IAF, Tab 1 at 9, Tab 4 at 17-19,

or when the alleged denial of the WIGI occurred. Thus, on remand the administrative 

judge should determine where and when the appellant first raised this claim and address 

any related timeliness issues, given that the appellant has not worked for the agency 

since August 2012. IAF, Tab 1 at 6.
10

September 29, 2014. See IAF, Tab 12 at 6-7. Thus, it seems that the deadline for 

filing his appeal was October 29, 2014, and any appeal from the FAD would be 

untimely. 

¶21 If an appellant fails to timely submit his appeal, it will be dismissed as 

untimely filed absent a showing of good cause for the delay. 5 C.F.R.

§ 1201.22(c). To establish good cause for the untimely filing of an appeal, a 

party must show that he exercised due diligence or ordinary prudence under the 

particular circumstances of the case. Alonzo v. Department of the Air Force, 

4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good cause, 

the Board will consider the length of the delay, the reasonableness of his excuse 

and his showing of due diligence, whether he is proceeding pro se, and whether 

he has presented evidence of the existence of circumstances beyond his control 

that affected his ability to comply with the time limits or of unavoidable casualty 

or misfortune which similarly shows a causal relationship to his inability to 

timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 

62–63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). 

¶22 The agency’s pleading below did not discuss the good cause standard and 

the administrative judge did not issue a timeliness order informing the appellant 

of his burden. See IAF, Tab 11 at 6-7. On remand, if appropriate, the 

administrative judge shall provide the appellant with an opportunity to explain if 

his appeal of the FAD was timely filed, and, if not, demonstrate good cause for 

his untimely appeal of the FAD.
11

ORDER

¶23 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board