Anthony Seda v. Social Security Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY WAYNE SEDA, DOCKET NUMBER
Appellant, PH-1221-19-0026-W-1
v.
SOCIAL SECURITY DATE: March 15, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony Wayne Seda , Aberdeen, Maryland, pro se.
Jennifer Karangelen , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal as barred by res judicata.
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 regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
find that the issue of the Board’s jurisdiction over the appellant’s claims is barred
by the doctrine of collateral estoppel rather than the doctrine of res judicata, and
to dismiss the appeal for lack of jurisdiction on that basis, we AFFIRM the initial
decision.
BACKGROUND
On January 18, 2017, the appellant filed an IRA appeal from the agency’s
action removing him during his probationary period from the position of Social
Insurance Specialist, Claims Representative, GS-07, effective January 25, 2006.
Seda v. Social Security Administration, MSPB Docket No. PH-1221-17-0149-
W-1, Initial Appeal File (0149 AF), Tab 6 at 2-3. The administrative judge
dismissed the appeal for lack of jurisdiction. 0149 AF, Tab 29, Initial Decision
(0149 ID) at 5-8. Specifically, he found that the appellant alleged reprisal for
advising the agency that he planned to file an equal employment opportunity
(EEO) complaint and contact the Department of Labor (DOL) alleging that the
agency violated his rights under the Family and Medical Leave Act of 1993
(FMLA) and denied him reasonable accommodation. 0149 ID at 7. However, he
concluded that the appellant failed to prove that he exhausted those alleged
disclosures or activities with the Office of Special Counsel (OSC). 0149 ID at 8.
3
In the alternative, the administrative judge denied corrective action. 0149 ID
at 8-13. That initial decision became the Board’s final decision when neither
party filed a petition for review by October 19, 2017. 0149 ID at 13; see 5 C.F.R.
§ 1201.113(a) (explaining that, absent a petition for review, an initial decision
generally becomes the Board’s final decision 35 days after issuance).
In the instant appeal, the administrative judge found that the appellant had
made the same arguments that he made in that prior appeal, i.e., that the agency
retaliated against him for filing DOL and EEO complaints when it removed him
from his position during his probationary period. Initial Appeal File (IAF),
Tab 22, Initial Decision (ID) at 2-3. Because he found that the pleadings in both
appeals were identical, and the prior decision was the Board’s final decision, he
dismissed the instant appeal on the basis of res judicata. ID at 3. In his petition
for review, the appellant disputes the merits of his termination 2 and reiterates his
claim of retaliation. Petition for Review (PFR) File, Tab 1 at 2-3, 7. He argues
that the agency denied him due process and committed harmful error. Id. at 2,
4-7. He also argues that the administrative judge was biased against him. Id.
at 2-3. The agency has filed a response to the appellant’s petition for review.
PFR File, Tab 5. The appellant has filed a reply to the agency’s response. PFR
File, Tab 8.
2
The appellant was terminated from his excepted-service appointment during his trial
period and lacked the requisite 1 year of current continuous service necessary to be an
“employee” with adverse action appeal rights to the Board under 5 U.S.C. § 7511(a)(1).
Seda v. Social Security Administration, MSPB Docket No. PH-0752-07-0053-I-1, Initial
Decision (Jan. 31, 2007). That decision became the Board’s final decision on whether
the appellant met the definition of “employee” under 5 U.S.C. § 7511(a)(1) when the
Board denied the appellant’s subsequent petition for review. Seda v. Social Security
Administration, MSPB Docket No. PH-0752-07-0053-I-1, Final Order (May 8, 2007);
5 C.F.R. § 1201.113. Thus, to the extent the appellant argues the merits of his
termination, asserts that the agency violated his right to due process, or raises
allegations of harmful error or disability discrimination as to that termination, we lack
authority to consider those claims. See Rivera v. Department of Homeland Security,
116 M.S.P.R. 429, ¶¶ 10, 16 (2011) (finding that, because the Board lacked jurisdiction
over the expiration of an appellant’s temporary appointment, it also lacked jurisdiction
over his discrimination and due process claims).
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DISCUSSION OF ARGUMENTS ON REVIEW
The doctrines of res judicata (claim preclusion) and collateral estoppel
(issue preclusion) both concern the preclusive effect of a prior adjudication and
are based on similar policy concerns—to “relieve parties of the cost and vexation
of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication.” Peartree v. U.S. Postal Service,
66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry, 449 U.S. 90, 94
(1980)). As noted above, the administrative judge found that the appellant’s IRA
appeal was barred by res judicata. We find this to be an error, as a dismissal of a
prior case for lack of jurisdiction cannot be given res judicata effect. Hau v.
Department of Homeland Security, 123 M.S.P.R. 620, ¶ 9 (2016), aff’d sub nom.
Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). The
Board may not address the merits of an IRA appeal before making a jurisdictional
determination. See King v Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 8
(2007) (finding that the Board must address the jurisdictional issue before
proceeding to the merits of an IRA appeal and that, without jurisdiction, an
administrative judge’s findings on the merits are a nullity). Thus, although the
administrative judge addressed the merits of the appellant’s claims in his prior
decision, we treat the dismissal of the appeal as a jurisdictional determination
only.
The Board applies collateral estoppel to determine whether a previous
adjudication of a jurisdictional issue precludes its relitigation. McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶¶ 15-20 (2005). Collateral estoppel
is appropriate when: (1) the 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
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 in that action. Id., ¶ 15. Collateral
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estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a
jurisdictional determination in a prior decision is afforded collateral estoppel
effect and the appellant provides no other valid basis of Board jurisdiction. Hau,
123 M.S.P.R. 620, ¶ 13.
The administrative judge found that the appellant raised the same
disclosures and activities in the instant matter as in his prior whistleblower
appeal. ID at 3. We have reviewed the record and agree with the administrative
judge that the disclosures and activities in each appeal are identical. IAF, Tab 1
at 89, Tab 5 at 94; PFR File, Tab 1 at 19; 0149 AF, Tab 6 at 30-40. In his prior
appeal, the appellant asserted that the agency terminated him because he informed
his supervisors that he would file an equal EEO complaint and contact the DOL
because the agency denied him leave under FMLA and a reasonable
accommodation. 0149 ID at 7. As noted above, the appellant did not file a
petition for review of the initial decision in his prior appeal challenging the
administrative judge’s findings on the issue of OSC exhaustion, and does not
address the issue in the instant appeal.
Further, the appellant has not provided evidence that he cured his failure to
exhaust his disclosures and activities with OSC. He attached to his appeal a copy
or printout of a letter to OSC, dated “Wednesday, 17, 2018.” IAF, Tab 1 at 7-15.
However, it appears that he is asserting that he sent a copy of his initial appeal,
including this letter, to OSC when he filed his initial appeal with the Board. Id.
at 31. He does not claim that he filed the letter with OSC as a new complaint.
Further, both below and on petition for review, the appellant refers to a 2006
contact with OSC, but does not mention the 2018 correspondence. PFR File,
Tab 1 at 7; IAF, Tab 11 at 29, 33, Tab 12 at 16, 18.
We also find that the dispositive jurisdictional issue was identical to the
issue actually litigated in the appellant’s prior appeal. 0149 ID at 7; ID at 2-3;
Setevage v. Department of Defense, 77 M.S.P.R. 120, 125 (1997) (finding
collateral estoppel barred an appellant from relitigating the issue of jurisdiction
6
over an IRA appeal). The administrative judge did not hold a hearing. 0149 ID
at 3 n.2. However, none was required. That an issue was “actually litigated”
means that the issue must have been contested by the parties and submitted for
determination by a court or other neutral adjudicator. Hamiter v. U.S. Postal
Service, 96 M.S.P.R. 511, ¶ 17 (2004). The administrative judge’s finding of no
jurisdiction was necessary to the resulting dismissal of the prior appeal, and
because the appellant was a party to the earlier action, he had a full and fair
opportunity to litigate the issue. 0149 ID at 7-8; McNeil, 100 M.S.P.R. 146, ¶ 15
(explaining that one of the ways in which a party in the new action had a full and
fair opportunity to litigate an issue in a prior action was as a party).
Although we agree with the administrative judge’s ultimate conclusion that
the claim is barred, because the prior decision found that the appellant failed to
establish jurisdiction over his appeal, we find that it is barred by collateral
estoppel rather than res judicata. Hau, 123 M.S.P.R. 620, ¶ 9. We find that the
administrative judge erred in finding that the appeal was barred by res judicata,
rather than to dismiss the appeal for lack of jurisdiction, relying on the doctrine
of collateral estoppel. As discussed above, collateral estoppel is the proper
doctrine on which to base a finding of preclusion when the prior appeal was
dismissed for lack of jurisdiction. However, this error was harmless and
therefore is not a basis to reverse the initial decision. See Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for revisal
of an initial decision).
To the extent that the administrative judge found that issues the appellant
could have raised in his prior IRA appeal, but did not do so, were also barred, ID
at 2-3, this was also an error. While res judicata precludes parties from
relitigating issues that could have been raised in the previous action, collateral
estoppel does not; it only precludes the relitigation of issues that were actually
litigated in the prior action. Fisher v. Department of Defense, 64 M.S.P.R. 509,
7
513 n.1 (1994). Nevertheless, we have carefully examined the appellant’s
pleadings and, as noted above, we find that he raised no new disclosures or
activities, and he does not allege that he filed a new complaint with OSC.
Because the appellant raised no other issues concerning jurisdiction over his IRA
appeal, we find this error is also harmless. Panter, 22 M.S.P.R. at 282.
The appellant attached numerous documents to his petition for review.
PFR File, Tab 1 at 27-220. He provided a table identifying the date of each
document included with his petition for review, indicating that all of the
documents date from before the close of the record below. Id. at 27-43; 5 C.F.R.
§ 1201.59. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing
that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3
M.S.P.R. 211, 213-14 (1980). Because the appellant does not make such a
showing here, we have not considered these documents.
As to his claims of bias against the administrative judge, the appellant
essentially expresses his disagreement with the administrative judge’s
adjudication of the issues in this and prior appeals. PFR File, Tab 1 at 2-3. An
administrative judge’s conduct during the course of a Board proceeding warrants
a new adjudication only if the administrative judge’s comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The
appellant makes no such showing. In making a claim of bias or prejudice against
an administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s allegations fail to
do so.
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NOTICE OF APPEAL RIGHTS 3
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 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
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:
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 notice, the
Board cannot advise which option is most appropriate in any matter.
9
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
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. 420 (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
10
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
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
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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:
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.
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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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.