NOTE: This disposition is nonprecedential.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.
`
`
`
`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
`GREER V. AIR FORCE
`
`No costs.
`
`No costs.
`
`COSTS
`
`COSTS
`
`
`
`
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