Charles Adams v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES DERECK ADAMS, DOCKET NUMBERS
Appellant, DC-3443-20-0832-I-1
DC-3443-21-0051-I-1
v.
DATE: FEBRUARY 7, 2023
DEPARTMENT OF DEFENSE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles Dereck Adams, Herndon, Virginia, pro se.
Paul Y. Kim and James J. Delduco, Esquire, Redstone Arsenal, Alabama,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of the initial decisions, which
dismissed his appeals for lack of jurisdiction. In his petitions for review, the
appellant disputes the administrative judges’ jurisdictional findings and argues
that, if his petitions are not granted and if the dismissals remain undisturbed, he
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
will have no other redress. Generally, we grant petitions such as these 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 these appeals, we JOIN them under 5 C.F.R.
§ 1201.36(a)(2) 2 and conclude that the petitioner has not established any basis
under section 1201.115 for granting the petitions for review. Therefore, we
DENY the petitions for review.
¶2 However, we expressly MODIFY the initial decision in MSPB Docket No.
DC-3443-21-0051-I-1 in the following regard. To the extent the appellant seeks,
in this appeal, to challenge the agency’s action in previously withholding
evidence during a prior appeal, that matter was fully adjudicated in Adams v.
Department of Defense, MSPB Docket No. DC-3443-10-0711-B-1. See Adams v.
Department of Defense, MSPB Docket No. DC-3443-10-0711-B-1, Initial
Decision (Feb. 29, 2016); Adams v. Department of Defense, MSPB Docket No.
DC-3443-10-0711-B-1, Final Order (July 14, 2016). Therefore, further
consideration is precluded under the doctrine of collateral estoppel. Collateral
estoppel precludes parties from relitigating issues when: (1) The issue previously
adjudicated is identical to that now presented; (2) that issue was actually litigated
in the prior case; (3) the previous determination of that issue was n ecessary to the
2
We have joined these cases for adjudication based on our determination that doing so
will expedite processing of the cases and will not adversely affect the interests of the
parties. 5 C.F.R. § 1201.36(a)(2), (b).
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resulting judgment; and (4) the party precluded by the doctrine was fully
represented in the prior case. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
(Fed. Cir. 1988); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 341 (1995);
Fisher v. Department of Defense, 64 M.S.P.R. 509, 515 (1994) (finding that a
party’s pro se status does not preclude the application of collateral estoppel; the
“fully represented” requirement is satisfied when the party to whom collateral
estoppel is applied has had a full and fair chance to litigate the issue in question) .
In all other respects, we AFFIRM the initial decisions.
NOTICE OF APPEAL RIGHTS 3
The initial decisions, as supplemented by this Final Order with respect to
MSPB Docket No. DC-3443-21-0051-I-1, constitute the Board’s final decisions
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 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
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 noti ce, the
Board cannot advise which option is most appropriate in any matter.
4
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
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
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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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. 4 The 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:
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.
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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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.