Ayoub Tartir v. Department of Agriculture ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AYOUB TARTIR, DOCKET NUMBER
Appellant, DC-0752-14-0577-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 14, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Ayoub Tartir, Glen Burnie, Maryland, pro se.
Kathy G. Jones, Beltsville, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal alleging an improper removal in September 2008 on the
grounds that relitigation of the timeliness of the appeal was barred under the
doctrine of collateral estoppel. Generally, we grant petitions such as this one
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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only when: 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 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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant filed this appeal on April 9, 2014, alleging that he was
improperly removed from his position as an IT Specialist in September 2008.
Initial Appeal File (IAF), Tab 1. The appellant had previously filed an appeal of
the same 2008 removal, and that appeal was dismissed in 2009 as untimely filed.
See Tartir v. Department of Agriculture, MSPB Docket No. DC-0752-09-0247-
I-1, Initial Decision (Feb. 3, 2009); IAF, Tab 7 at 8-14. The appellant did not
request review of that decision by the Board or the U.S. Court of Appeals for the
Federal Circuit; instead more than 5 years later, he filed this new appeal. The
administrative judge dismissed this appeal on the grounds of collateral estoppel.
IAF, Tab 11, Initial Decision. The judge had issued an order to show cause why
the appeal should not be barred on issue preclusion, but the appellant did not
address this issue in any of his three responsive pleadings filed prior to the initial
decision, submitting only evidence apparently contesting the appropriateness of
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the agency’s personnel actions during his employment. See IAF, Tabs 5, 6, 8, 9.
The appellant filed a petition for review, denying all agency charges against him
in the 2008 removal and requesting additional review of his case, but making no
substantive legal argument concerning the administrative judge’s application of
collateral estoppel. Petition for Review (PFR) File, Tab 1 at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 Collateral estoppel, or issue preclusion, is appropriate when: (1) an issue is
identical to that involved in the prior action; (2) the issue was actually litigated in
the prior action; (3) the determination on the issue in the prior action was
necessary to the resulting judgment; and (4) the party precluded was fully
represented in the prior action. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
(Fed. Cir. 1988). The Board clarified in McNeil v. Department of Defense that
the fourth prong requires that the party against whom issue preclusion is sought
had a full and fair opportunity to litigate the issue in the prior action, either as a
party to the earlier action or as one whose interests were otherwise fully
represented. 100 M.S.P.R. 146, ¶ 15 (2005). The dismissal of a Board appeal on
timeliness grounds can be given collateral estoppel effect if the elements of that
doctrine are established. Allen v. Office of Personnel Management, 77 M.S.P.R.
212, 221 n.5 (1998) (final decisions in chapter 75 appeals that have been
dismissed on timeliness grounds were not relitigated under the doctrine of
collateral estoppel insofar as the appellants did not present different bases for a
finding of good cause for the delayed filing); see also Nebblett v. Office of
Personnel Management, 73 M.S.P.R. 342, 347 & n.2 (1997) (finding that the
administrative judge’s dismissal of the appeal on the basis of untimeliness, which
became the Board’s final decision, was a collateral estoppel bar to an appeal of
the same OPM reconsideration decision), aff’d, 152 F.3d 948 (Fed. Cir. 1998).
¶4 We conclude that the appellant has not shown error in the administrative
judge’s finding that the elements of collateral estoppel have been met in this case
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regarding the timeliness of his appeal of the 2008 removal, and that he is thus
precluded from relitigating this issue. The matter previously adjudicated, the
untimeliness of the appeal from his 2008 removal, is identical to the issue in the
instant appeal. The timeliness issue was actually litigated in the 2009 appeal, and
that timeliness determination was necessary to the resulting judgment. The
appellant has filed five pleadings after the show cause order but has never
addressed the issue of collateral estoppel, nor has he made a substantive argument
of good cause for the untimeliness of his 2009 appeal. See IAF, Tabs 6, 8, 9; PFR
File, Tabs 1, 4. The appellant argued merely that he was “busy” studying at the
time of the original 2009 appeal and that he was currently applying for federal
employment that would investigate his prior work experience. IAF, Tab 6 at 3.
The record shows that he submitted over thirty pages of evidence, addressing only
his work experience at the agency, his education records, and a summary of
personnel actions taken against him. IAF, Tab 9. As argued by the agency, the
appellant has failed to address the issue of collateral estoppel in any way or argue
legal error in the findings of the administrative judge in the initial decision. See
IAF, Tab 7; PFR File, Tab 3. Moreover, the appellant offered no explanation of
why he waited more than 5 years to file a second appeal of the removal action.
Therefore, the doctrine of collateral estoppel precludes the adjudication of the
timeliness of the appeal of the agency’s removal action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.