Dieter Stussy v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIETER STUSSY, DOCKET NUMBER
Appellant, SF-1221-17-0095-W-1
v.
DEPARTMENT OF THE TREASURY, DATE: June 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dieter Stussy, Las Vegas, Nevada, pro se.
Mikel C. Deimler, Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as barred by collateral
estoppel. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant, an Internal Revenue Service employee, was removed in
1993. His grievance of that matter was resolved by a 1994 settlement agreement
pursuant to which his removal was changed to a resignation, effective
February 15, 1994. In February 2012, he applied for disability retirement under
the Federal Employees’ Retirement System, but the Office of Personnel
Management (OPM) dismissed his application as untimely filed. On appeal, a
Board administrative judge affirmed OPM’s decision, the full Board denied the
appellant’s petition for review of the decision, Stussy v. Office of Personnel
Management, MSPB Docket No. SF-844E-13-0168-I-1, Final Order at 2, 6
(May 7, 2014), and the U.S. Court of Appeals for the Federal Circuit affirmed the
Board’s decision, Stussy v. Office of Personnel Management, 662 F. App’x 972(Fed. Cir. 2016); Petition for Review (PFR) File, Tab 1 at 19.
¶3 On November 4, 2013, the appellant filed an IRA appeal alleging, inter alia,
that, in retaliation for his whistleblowing activities, the agency conspired to
remove him in 1993 and entered into an invalid settlement agreement in 1994,
rendering his resignation involuntary. Finding that the appellant failed to
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establish exhaustion and otherwise satisfy the jurisdictional requirements for an
IRA appeal, the administrative judge dismissed it. Stussy v. Department of the
Treasury, MSPB Docket No. SF-1221-14-0068-W-1, Initial Decision at 9-10
(Mar. 26, 2014); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001) (holding that the Board has jurisdiction over an IRA appeal if the
appellant has exhausted his or her administrative remedies before the Office of
Special Counsel (OSC) and makes nonfrivolous allegations that (1) he engaged in
whistleblowing activity by making a protected disclosure, and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action). On review, the full Board affirmed the initial decision but
modified it to dismiss as untimely the appellant’s IRA claim that he exhausted his
remedy with OSC in 1997 and 1998, and to find that the reason the Board lacks
jurisdiction over his claim that his resignation was involuntary is that he elected
to first challenge that matter through the negotiated grievance procedure. Stussy
v. Department of the Treasury, MSPB Docket No. SF-1221-14-0068-W-1, Final
Order at 4-5, 7-8 (June 23, 2015). Despite the Board’s guidance as to how the
appellant could challenge its decision, he sought review at the Equal Employment
Opportunity Commission, which denied consideration of the petition. His
subsequent filing with the Federal Circuit was dismissed as untimely filed. Stussy
v. Merit Systems Protection Board, No. 2016-1553 (Fed. Cir. June 22, 2016);
Initial Appeal File (IAF), Tab 7 at 9. 2
2
On December 1, 2015, the appellant filed another IRA appeal in which he alleged that
the Board’s administrative judge retaliated against him by ruling against him in his
disability retirement appeal after he disclosed alleged misconduct by OPM counsel and
the administrative judge himself. The administrative judge in this IRA appeal
dismissed the case for lack of jurisdiction, finding that the appellant failed to
nonfrivolously allege that he was subjected to a personnel action, Stussy v. Merit
Systems Protection Board, MSPB Docket No. SF-1221-16-0142-W-1, Initial Decision
(Dec. 23, 2015), and the full Board denied the appellant’s petition for review of that
decision, Stussy v. Merit Systems Protection Board, MSPB Docket No. SF-1221-16-
0142-W-1, Final Order (May 27, 2016).
4
¶4 In this current IRA appeal, the appellant challenged a number of these same
matters, including the merits of his 1993 removal, the voluntariness of his 1994
resignation, and the validity of the settlement agreement that preceded it , and he
again appeared to allege that the agency retaliated against him because of his
whistleblowing activity. IAF, Tab 1 at 9-12. With his appeal, he submitted a
copy of an OSC complaint he filed on August 12, 2016, seeking to reopen his
previous complaint, id. at 34-41, and a September 30, 2016 letter he received
from OSC regarding his filing, id. at 32-33. He requested a hearing. Id. at 1. In
acknowledging the appeal, the administrative judge referred the appellant to his
prior appeals and directed him to show why this appeal s hould not be dismissed
as precluded by collateral estoppel, and he also directed the appellant to provide
evidence and argument showing that he exhausted his remedy before OSC. IAF,
Tab 3. The appellant responded, IAF, Tab 6, and, in its response, the agency
urged that the appeal be dismissed for lack of jurisdiction , IAF, Tab 7.
¶5 In his initial decision based on the written record, the administrative judge
dismissed the appellant’s appeal. IAF, Tab 8, Initial Decision (ID) at 1, 8. The
administrative judge first considered the September 30, 2016 OSC letter which,
he found, merely advised the appellant that it had no basis to further investigate
his allegations challenging his removal but did not indicate that it was reopening
his previous complaints so as to extend his deadline for filing an IRA appeal with
the Board. Cf. Hawker v. Department of Veterans Affairs, 123 M.S.P.R. 62, ¶ 7
(2015) (holding that a decision by OSC to reopen its investigation deprives its
initial close-out determination of the requisite finality needed for purposes of
seeking Board review). As such, the administrative judge found that the
appellant’s 1997 and 1998 complaints that the Board found to be untimely by
15 years remain so. ID at 4-6. The administrative judge further found, based on
the Board’s decision in Stussy v. Department of the Treasury, MSPB Docket
No. SF-1221-14-0068-W-1, Final Order (June 23, 2015), that the appellant’s
remaining claims were barred by collateral estoppel. ID at 6-8.
5
¶6 The appellant has filed a petition for review, PFR File, Tab 1, to which the
agency has responded in opposition, PFR File, Tab 3, and the appellant has filed a
reply, PFR File, Tab 4.
ANALYSIS
¶7 On review, the appellant argues that neither res judicata nor collateral
estoppel applies to bar consideration of his claims. PFR File, Tab 1 at 4 -8.
Although the agency argued below that the appellant’s appeal is barred by res
judicata, IAF, Tab 6 at 5-7, the administrative judge did not rely on that doctrine,
but rather on collateral estoppel, to dismiss the appellant’s appeal. ID at 6-8.
Therefore, we need not address whether the appellant’s appeal is barred by res
judicata, which has different criteria. Peartree v. U.S. Postal Service,
66 M.S.P.R. 332, 337 (1995).
¶8 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 preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). The administrative judge
found that these criteria apply to the appellant’s claims regarding the rescinded
1993 removal, the invalidity of the 1994 settlement agreement, and the agency’s
alleged violation of that agreement. ID at 6-8. As noted, the Board in Stussy v.
Department of the Treasury, MSPB Docket No. SF-1221-14-0068-W-1, found
that the claims related to the 1993 removal were not timely raised to the Board
following the appellant’s receipt of OSC’s closure letters, and that the
administrative judge properly found that the Board lacks jurisdiction over the
appellant’s alleged involuntary resignation claim because he elected to pursue
that matter through the negotiated grievance procedure. Final Order at 5-8.
These jurisdictional and timeliness findings made in that decision bar the
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appellant, under the doctrine of collateral estoppel, from raising the se same
claims again in this appeal. See Ford v. U.S. Postal Service, 118 M.S.P.R. 10,
¶ 11 (2012).
¶9 The appellant also alleges bias on the part of the administrative judge as to
a number of matters. PFR File, Tab 1 at 10-14. Some of the appellant’s
allegations relate to actions of the administrative judge in prior appeals (claims
#1, 2, 3, and 5) and they are therefore not relevant to this appeal. The appellant’s
assertions regarding the administrative judge’s actions in this case include his
denying sufficient time for discovery (claim #1), “being insubordinate to [the
Federal Circuit] in entering his judicially estopped decision and thus denying the
appellant’s claim” (emphasis in original) (claim #4), mischaracterizing OSC’s
correspondence (claim #6), and being “derelict in his duties” by stating that the
appellant’s challenge to the review rights the Board provided in its 2015 Final
Order is a matter more appropriately addressed to the Federal Circuit (claim #7).
These allegations of bias appear to be based only on rulings made during this
proceeding and findings made in the initial decision. Such rulings and findings ,
even if erroneous, do not establish bias sufficient to warrant recusal. See King v.
Department of the Army, 84 M.S.P.R. 235, ¶ 6 (1999); Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that, 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).
¶10 Finally, the appellant alleges that the administrative judge abused his
discretion by not allowing the appellant to reply to the agency’s response to the
administrative judge’s order to show cause. PFR File, Tab 1 at 10-12. In that
November 18, 2016 Order, the administrative judge directed the appellant to
respond to the res judicata/collateral estoppel issue such that the Board and the
agency received his submission within 10 calendar days (by November 28). IAF,
Tab 3. The administrative judge stated that the agency’s response had to be
7
received within 19 calendar days (by December 7), and that the record would
close on that date, unless the agency submitted new evidence or argument just
before the close of the record, in which case the appellant could respond by a
further filing received within 24 calendar days (by December 12). Id. The record
reflects that the agency did file its response to the administrative judge’s order on
December 7, 2016, IAF, Tab 7, and that, therefore, the appellant had 5 days in
which to submit a final filing, but did not do so. The appellant has not explained
why he did not attempt to make any further filing after the agency filed its
response to the administrative judge’s order, or identified what additional
evidence or argument he was unable to submit. Rather, he argues that the
administrative judge’s scheduling precluded him from pursuing meaningful
discovery. PFR File, Tab 1 at 10-11. However, he has not argued that he was
attempting to pursue discovery in this case, despite the administrative judge’s
November 17, 2016 acknowledgment order describing the Board’s discovery
procedures. IAF, Tab 2. Administrative judges have broad authority to govern
the proceedings before them. 5 C.F.R. § 1201.41(b); see Morrison v. Department
of the Navy, 122 M.S.P.R. 205, ¶ 12 (2015). Under the circumstances, we find
that the appellant has not shown that the administrative judge abused his
discretion regarding the scheduling set forth in the show cause order.
¶11 We have considered the remaining matters to which the appellant has
referred on review, including his 1996 “Tucker Act District Court case,” PFR
File, Tab 1 at 8-9; the merits of his whistleblower claim, id. at 14-15; and the
2007 guilty plea of his former fourth-level supervisor, id. at 15-16, but find that
none of these matters has any bearing on the propriety of the initial decision here
under review.
¶12 Accordingly, we affirm the initial decision.
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NOTICE OF APPEAL RIGHTS 3
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 see king 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.
12
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.