Gibson-Michaels v. Federal Deposit Insurance Corp. , 352 F. App'x 431 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3200
YOLANDA C. GIBSON-MICHAELS,
Petitioner,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent.
Yolanda C. Gibson-Michaels, of Temple Hills, Maryland, pro se.
Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Brian M. Simkin, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3200
YOLANDA C. GIBSON-MICHAELS,
Petitioner,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent.
Petition for review of the Merit Systems Protection Board in DC1221080698-W-1.
__________________________
DECIDED: November 4, 2009
__________________________
Before MICHEL, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
Yolanda C. Gibson-Michaels (“Gibson-Michaels”) appeals the final judgment of
the Merit Systems Protection Board (“Board”), which dismissed her individual right of
action appeal on the basis of collateral estoppel. Gibson-Michaels v. Fed. Deposit Ins.
Corp., No. DC-1221-08-0698-W-1 (M.S.P.B. Mar. 31, 2009). Because we find no basis
to overturn the Board’s decision, we affirm.
Gibson-Michaels worked as an Information Specialist for the Federal Deposit
Insurance Corporation (“FDIC”). The FDIC initiated her removal in December 2004 for
numerous incidents of misconduct. In January 2005, Gibson-Michaels entered into a
settlement agreement with the FDIC in which she resigned and withdrew a number of
Equal Employment Opportunity (“EEO”) complaints in exchange for a portion of her
annual salary and other benefits. On April 20, 2005, the FDIC notified Gibson-Michaels
that since the settlement agreement did not include a required notice under the Age
Discrimination in Employment Act she had the option to cancel the agreement within
seven calendar days. Gibson-Michaels timely provided notice of her intent to cancel the
settlement agreement. The FDIC, however, declined to cancel the agreement based on
some of the language in Gibson-Michaels’s notice. Gibson-Michaels filed an individual
right of action (“IRA”) appeal on June 28, 2005. In her appeal, Gibson-Michaels claimed
both that she had engaged in protected whistleblowing activity and that she had been
coerced into resigning from the agency. The administrative judge (“AJ”) therefore
docketed the appeal as two separate appeals. Gibson-Michaels v. Fed. Deposit Ins.
Corp., No. DC-0752-05-0633-I-1 (M.S.P.B. Nov. 14, 2005) (“Gibson-Michaels I”).
In the first IRA appeal, in which Gibson-Michaels claimed that she had been
coerced into resigning, the AJ found that Gibson-Michaels had given proper notice of
her intent to cancel the settlement agreement and that the FDIC had erred in not giving
effect to the cancellation. Gibson-Michaels I at 4. The AJ ordered the agency to cancel
Gibson-Michaels’s resignation, retroactively reinstate her to her position as an
Information Specialist, and pay her the appropriate amount of back pay. Id. The FDIC
complied with this order. See Gibson-Michaels v. Fed. Deposit Ins. Corp., M.S.P.B.
Docket Nos. DC-0752-05-0633-C-1 (Final Order, Oct. 26, 2006) and DC-0752-05-0633-
C-2 (Final Order, Oct. 26, 2006) (finding in favor of the FDIC in two enforcement actions
related to Gibson-Michaels’s reinstatement and the calculation of back pay); Gibson-
2009-3200 2
Michaels v. Fed. Deposit Ins. Corp., 226 F. App’x 1003 (Fed. Cir. 2007) (dismissing
appeals of both enforcement actions as voluntarily withdrawn).
In the second IRA appeal, in which Gibson-Michaels claimed retaliation against
whistleblowing disclosures, the AJ found that Gibson-Michaels had not shown that she
had engaged in any protected whistleblowing activity and dismissed the appeal for lack
of jurisdiction. Gibson-Michaels v. Fed. Deposit Ins. Corp., No. DC-1221-05-0594-W-2
(M.S.P.B. Mar. 2, 2006) (“Gibson-Michaels II”). Gibson-Michaels claimed that her
whistleblowing disclosures consisted of reporting her supervisor for violating her rights
under the Family and Medical Leave Act of 1993, fabricating facts, and falsifying her
leave balances. Id. at 4-5. Gibson-Michaels also claimed that she had provided the
Office of Special Counsel with evidence of “FDIC’s fraud, waste, abuse, nepotism,
money laundering, wire fraud, contacts, [and] inside trading.” Id. at 5. The AJ found
that none of the allegations or evidence provided by Gibson-Michaels showed that she
could reasonably have concluded that the actions of the government evidenced a
violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health and safety. Id.
at 4-6. The Board denied Gibson-Michaels’s petition for review on July 11, 2006.
Gibson-Michaels v. Fed. Deposit Ins. Corp., 104 M.S.P.B. 143 (2006) (unpublished
table decision).
Following her reinstatement, on December 19, 2005, the FDIC issued Gibson-
Michaels a proposed removal based on the same misconduct that prompted the
initiation of removal in December 2004. On March 27, 2006, the FDIC removed Gibson-
2009-3200 3
Michaels from her position for misconduct, including disrespectful and/or inappropriate
conduct and failure to follow instructions.
Gibson-Michaels promptly filed an IRA appeal alleging that her removal was
retaliation for whistleblowing disclosures. The AJ found that Gibson-Michaels did not
provide any evidence that she had provided any disclosures to the Office of Special
Counsel, and therefore had not exhausted her administrative remedies or made any
“allegations that, if proven true, could be construed as showing that she engaged in
protected whistleblowing activity.” Gibson-Michaels v. Fed. Deposit Ins. Corp., No. DC-
1221-06-0413-W-1 (M.S.P.B. May 4, 2006) (“Gibson-Michaels III”). The Board denied
Gibson-Michaels’s petition for review on July 27, 2006. Gibson-Michaels v. Fed.
Deposit Ins. Corp., 103 M.S.P.B. 234 (2006) (unpublished table decision). This court
affirmed the Board’s decision in February 2007. Gibson-Michaels v. Fed. Deposit Ins.
Corp., 214 F. App’x 998 (Fed. Cir. 2007).
On August 11, 2008, Gibson-Michaels filed another IRA appeal, again alleging
that her removal was retaliation by the FDIC for whistleblowing disclosures. Apparently,
Gibson-Michaels filed the new appeal because the Office of Special Counsel had
“reopened [its] investigation” of her whistleblower allegations and had “issued a
decision” on June 11, 2008. Pet’r’s Br. at 1-2. The Office of Special Counsel did send a
letter to Gibson-Michaels dated June 11, 2008 in which it stated it was closing her file.
The AJ dismissed the appeal on the basis of collateral estoppel, finding that Gibson-
Michaels’s alleged protected whistleblowing disclosures were the same disclosures
previously raised before the Board. Gibson-Michaels v. Fed. Deposit Ins. Corp., No.
DC-1221-08-0698-W-1 (M.S.P.B. Dec. 4, 2008). The Board denied Gibson-Michaels’s
2009-3200 4
petition for review on March 31, 2009. Gibson-Michaels v. Fed. Deposit Ins. Corp., 111
M.S.P.B. 310 (2009) (unpublished table decision). Gibson-Michaels filed a timely
appeal with this court on May 27, 2009.
This court’s review of a decision of the Board is limited by statute. Under 5
U.S.C. § 7703(c) (2006), this court is bound by a decision of the Board unless we find it
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
obtained without procedures required by law; or unsupported by substantial evidence.
See, e.g., Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999). The
jurisdiction of the Board is a legal question that this court reviews without deference.
Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003).
Under the doctrine of collateral estoppel (sometimes referred to as issue
preclusion), a litigant who has litigated an issue in a full and fair proceeding is estopped
from relitigating the issue in a subsequent proceeding. See Thomas v. Gen. Servs.
Admin., 794 F.2d 661, 664 (Fed. Cir. 1986). Collateral estoppel “is normally applicable
if (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. The AJ properly found that all the elements of the
doctrine were satisfied. In the IRA appeals of June 2005 and March 2006, the AJ fully
considered, but rejected, Gibson-Michaels’s allegations of whistleblowing reprisal for the
same disclosures made in December 2004. Her two-page informal brief offers no
arguments and cites no evidence as to why the AJ erred in dismissing her
2009-3200 5
whistleblowing appeal as being previously litigated, and therefore provides no basis for
us to rule in her favor.
In her informal brief, Gibson-Michaels references a footnote in the AJ’s Initial
decision of May 4, 2006. In this footnote, the AJ stated that “[t]he agency thereafter
removed the appellant, effective March 31, 2006, based on unrelated charges of
misconduct.” Gibson-Michaels III at 2-3 n.2 (emphasis added). Gibson-Michaels
apparently interprets this statement as proof that her removal was “unrelated to
misconduct” and therefore, presumably must be related to her whistleblowing activity.
Pet’r’s Br. at 1. However, this language actually refers to the fact that the FDIC
removed Gibson-Michaels from her position based on misconduct that was unrelated to
the Board’s order finding that her resignation was involuntary. It does not provide any
basis for a finding that Gibson-Michaels’s removal was in retaliation for whistleblowing
activity.
Gibson-Michaels also challenges the propriety of her March 2006 removal and
the enforcement of the November 2005 Board decision. However, these issues were
not raised to the AJ and therefore are not properly addressed in this appeal. Frank v.
Dep’t of Transp., Fed. Aviation Admin., 35 F.3d 1554, 1559 (Fed. Cir. 1994) (“[W]e do
not consider issues that were not raised in the proceedings below.”).
For the foregoing reasons, the Board’s decision is affirmed.
2009-3200 6