NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILL S. GREER, II,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2017-1939
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-17-0149-I-1.
______________________
Decided: December 12, 2017
______________________
WILL S. GREER, II, Schertz, TX, pro se.
STEVEN C. HOUGH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA
PREHEIM.
______________________
Before NEWMAN, DYK, and O’MALLEY, Circuit Judges.
2 GREER v. AIR FORCE
PER CURIAM.
Petitioner seeks review of a Merit Systems Protection
Board decision dismissing his appeal for lack of jurisdic-
tion. Because the Board correctly found that Mr. Greer’s
appeal is barred by the doctrine of issue preclusion, we
affirm.
BACKGROUND
Mr. Greer is a former civilian employee of the Air
Force (“the agency”) who worked as a Motor Vehicle
Operator at Randolph Air Force Base. In November 2012,
the agency proposed removing Mr. Greer for discourteous
conduct and inappropriate comments.
On November 8, 2012, Mr. Greer and the agency en-
tered into a last chance agreement, which provided that
Mr. Greer would accept a 14-day suspension and would
attend an Anger Management Program. The agreement
further provided that the agency would hold Mr. Greer’s
removal in abeyance for 36 months but that the agency
could remove him “should management learn of any
additional misconduct for which the Agency’s Guide to
Disciplinary Actions . . . lists a penalty of reprimand or
greater.” J.A. 13. Finally, the agreement stated that “Mr.
Greer voluntarily and unconditionally waives any and all
rights that he may have to appeal to the Merit Systems
Protection Board (MSPB), Equal Employment Opportuni-
ty Commission (EEOC) and to grieve, complain, or litigate
the removal action being held in abeyance.”
Id.
On October 8, 2013, the agency informed Mr. Greer
that he was being removed from his position because he
had violated the terms of the last chance agreement by
making additional inappropriate comments to a supervi-
sor.
On October 29, 2013, Mr. Greer filed an appeal with
the MSPB challenging his removal. Greer v. Dep’t of the
GREER v. AIR FORCE 3
Air Force, No. DA-0752-14-0055-I-1,
2014 WL 5424297
(M.S.P.B. Sept. 12, 2014) (“2014 Appeal”). The adminis-
trative judge held a hearing and dismissed the appeal for
lack of jurisdiction because Mr. Greer had waived his
right to appeal a removal action under the terms of the
last chance agreement. On petition for review, the full
Board affirmed that decision.
On April 11, 2015, Mr. Greer appealed his removal to
the Board for a second time. Greer v. Dep’t of the Air
Force, No. DA-0752-15-0324-I-1,
2015 WL 4877902
(M.S.P.B. Aug. 8, 2015) (“2015 Appeal”). The administra-
tive judge found that the appeal was barred by the doc-
trine of “collateral estoppel,” otherwise known as issue
preclusion, based on the decision in the 2014 appeal and
once again dismissed the appeal for lack of jurisdiction.
Mr. Greer did not petition for review by the full Board.
On January 15, 2017, Mr. Greer appealed his removal
to the Board for a third time. Greer v. Dep’t of the Air
Force, No. DA-0752-17-0149-I-1,
2017 WL 747776
(M.S.P.B. Feb. 23, 2017) (“2017 Appeal”). On February 23,
2017, the administrative judge granted the Air Force’s
motion to dismiss for lack of jurisdiction, again finding
that the appeal was barred by the doctrine of “collateral
estoppel.”
On April 5, 2017, Mr. Greer filed an untimely petition
for review by the full board. On April 17, 2017, Mr. Greer
filed a petition for review to this court.
DISCUSSION
This court’s jurisdiction is limited to appeals from fi-
nal orders or final decisions of the MSPB. 28 U.S.C. §
1295(a)(9). Thus, an employee may either seek review in
this court of the administrative judge’s decision, which
becomes final 35 days after issuance, 5 C.F.R. §§
1201.113, .120, or may first file a petition for review by
4 GREER v. AIR FORCE
the full Board and then seek review in this court of the
full Board’s final decision.
Id. §§ 1201.114, .120.
On June 16, 2017, the Air Force filed a motion to dis-
miss for lack of jurisdiction, arguing that no final decision
existed in this case because Mr. Greer filed his appeal to
this court while his untimely petition for review to the
MSPB was still pending. On July 28, 2017, we denied the
Air Force’s motion. We noted that the administrative
judge’s initial decision ostensibly became final on March
30, 2017, six days before Mr. Greer filed his petition for
review by the Board. We also observed that, on April 7,
2017, the Board informed Mr. Greer that his petition was
considered untimely and instructed him to file a motion
with the Board by April 22, 2017, requesting that the
filing be accepted as timely or that the time limit be
waived for good cause. Mr. Greer filed no such motion.
In its briefing before this panel, the Air Force again
argues that this court lacks jurisdiction because Mr.
Greer’s MSPB petition for review remains pending. We
see no reason to depart from our previous decision on this
issue. Consequently, we find Mr. Greer’s petition for
review is directed to the administrative judge’s decision
on February 23, 2017, which became final on March 30,
2017. Mr. Greer’s petition for review of that decision was
timely filed in this court, and the decision of the adminis-
trative judge is the decision of the Board.
As to the correctness of the Board’s decision, we note
that the Board dismissed Mr. Greer’s 2017 appeal for lack
of jurisdiction because the same jurisdictional issue had
already been litigated in his 2014 appeal and the Board
had concluded that he waived his right to appeal by way
of the last chance agreement. Further litigation of the
issue was therefore barred by the doctrine of issue preclu-
sion. We must affirm the Board’s decision unless it is: “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
GREER v. AIR FORCE 5
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence . . . .”
5 U.S.C. § 7703(c). We review the Board's determination
of jurisdiction de novo. Palmer v. Merit Sys. Prot. Bd.,
550
F.3d 1380, 1382 (Fed. Cir. 2008). Mr. Greer must prove
the Board's jurisdiction by a preponderance of the evi-
dence. 5 C.F.R. § 1201.56(b)(2)(i)(A).
Issue preclusion “protects litigants from the burden of
relitigating an identical issue.” Morgan v. Dep’t of Energy,
424 F.3d 1271, 1274 (Fed. Cir. 2005). The MSPB may
apply issue preclusion where: “(i) the issue previously
adjudicated is identical with that now presented, (ii) that
issue was actually litigated in the prior case, (iii) the
previous determination of that issue was necessary to the
end-decision then made, and (iv) the party precluded was
fully represented in the prior action.”
Id. at 1274–75.
We see no error in the administrative judge’s applica-
tion of these factors. The 2014 appeal raised the same
issue as the 2017 appeal: whether the Board had jurisdic-
tion to consider Mr. Greer’s removal pursuant to the last
chance agreement in which he waived his appeal rights.
In that prior case, the Board found that Mr. Greer had
waived his appeal rights and had failed to show that the
Air Force acted in bad faith in removing him pursuant to
the terms of the last chance agreement. For these reasons,
the Board determined that it lacked jurisdiction and
dismissed the 2014 appeal. Thus, the jurisdictional issue
was actually litigated in the prior case, and its determina-
tion was necessary to the Board’s decision to dismiss. And
Mr. Greer, the party against whom issue preclusion
applies, was a party to both appeals. The Board correctly
determined that issue preclusion applies and that Mr.
Greer’s appeal from the agency’s removal action is barred.
AFFIRMED
6 GREER v. AIR FORCE
COSTS
No costs.
