UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENYA K. HOLT,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-16-0129-I-2

DATE: January 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kevin Mirch, Esquire, San Diego, California, for the appellant.

John William Torresala, Esquire, Camp Pendleton, California, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained his removal based on one charge of conduct unbecoming a civilian 

police officer arising from misconduct for which imprisonment may be 

imposed—namely, that he engaged in sexual misconduct for which he was 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

arrested and charged. Because the appellant was convicted in a California state 

court of forcible rape, the administrative judge found that collateral estoppel 

precluded him from challenging the merits of the underlying misconduct. On 

petition for review, the appellant argues that the administrative judge erred in

applying the Board’s case law regarding collateral estoppel, that he should have 

applied the common law of California, and that the Board should stay his removal 

until his criminal conviction has been fully litigated.

¶2 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 regulatio n 

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. Except as expressly MODIFIED to 

consider the new and material evidence that the appellant’s criminal conviction 

has been fully litigated and to apply the common law of California regarding 

collateral estoppel, we AFFIRM the initial decision.

¶3 The appellant asserts that the administrative judge should have applied the 

common law of California to analyze whether he was collaterally estopped from 

challenging his criminal conviction and the misconduct underlying the charge. 

Petition for Review (PFR) File, Tab 1 at 4. The administrative judge applied the 

Board’s doctrine of collateral estoppel to find that the appellant was estopped 

from arguing that he did not engage in the disputed misconduct. Refiled Appeal 
3

File, Tab 33, Initial Decision at 5-6 (citing Kavaliauskas v. Department of the 

Treasury, 120 M.S.P.R. 509, ¶ 5 (2014)). However, when an appellant is found 

guilty of a crime under state law, the Board will apply the common law of that 

state regarding collateral estoppel to determine the preclusive effect of the 

conviction. Graybill v. U.S. Postal Service, 782 F.2d 1567, 1571-73 (Fed. Cir. 

1986); see Mosby v. Department of Housing & Urban Development, 114 M.S.P.R. 

674, ¶ 5 (2010). Accordingly, we modify the initial decision to consider the 

doctrine of collateral estoppel under California law. 

¶4 Under California law, the following four criteria govern the application of 

collateral estoppel to issues raised in a prior criminal proceeding: 

(1) the prior conviction must have been for a serious offense so that 

the defendant was motivated to fully litigate the charges; (2) there 

must have been a full and fair trial to prevent convictions of doubtful 

validity from being used; (3) the issue on which the prior conviction 

is offered must of necessity have been decided at the criminal trial; 

and (4) the party against whom collateral estoppel is asserted was a 

party or in privity with a party to the prior trial.

Ayers v. City of Richmond, 895 F.2d 1267, 1271 (9th Cir. 1990); see, e.g.,

Holguin v. City of San Diego, 135 F. Supp. 3d 1151, 1159 (S.D. Cal. 2015). 

Collateral estoppel will not be applied unless the time for appeal has elapsed. See 

Ayers, 895 F.2d at 1271-72.

¶5 Here, the appellant’s conviction was for a serious offense, the issues are the 

same, and the appellant is a party in both actions. The appellant asserts only that 

he has not fully litigated his conviction, and thus the Board should stay his 

removal to afford him the opportunity to do so. PFR File, Tab 1 at 4. However, 

we have considered the agency’s argument and the case disposition information, 

submitted for the first time on review, indicating that the California Court of 

Appeal for the Fourth District, Division 2 (California Court of Appeal), has since 

affirmed the appellant’s conviction and that he did not file an appeal with the 

Supreme Court of California, as this evidence and argument demonstrates that the 

conviction has since been fully litigated. PFR File, Tab 6 at 7-8, Tab 9 at 29-36; 
4

see Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 

839 F.3d 1126 (Fed. Cir. 2016). The California Court of Appeal affirmed the 

appellant’s conviction of forcible rape on October 17, 2017. People v. Holt, 

No. E066715, 2017 WL 4640113 (Cal. Ct. App. Oct. 17, 2017). The appellant 

had 10 days to file a petition for review in the California Supreme Court. Cal. R. 

Ct. 8.500(e)(1). He did not do so, and the California Court of Appeal issued a 

remittitur on December 19, 2017, certifying that the case is complete. PFR File, 

Tab 9 at 31. Accordingly, the appellant’s argument that the Board should stay his 

removal to afford him the opportunity to fully litigate his appeal is moot. Thus, 

we sustain the charge and affirm the removal.

NOTICE OF APPEAL RIGHTS2

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d 

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. 

 

2

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.
5

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: 

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 
6

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. ____ , 137 S. Ct. 1975 (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 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: 
7

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 

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.3The 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). 

 

3

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. 
8

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. 

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