Greer v. Air Force
17-1939
| Fed. Cir. | Dec 12, 2017Background
- Greer, a civilian Air Force motor vehicle operator, signed a November 8, 2012 last-chance agreement: 14-day suspension, anger management, 36-month abeyance, and an unconditional waiver of MSPB/EEOC appeal rights for any removal held in abeyance.
- On October 8, 2013 the Air Force removed Greer for alleged further misconduct (inappropriate comments), invoking the last-chance agreement.
- Greer appealed to the MSPB in 2014; the administrative judge and then the full Board found Greer had waived appeal rights and dismissed for lack of jurisdiction.
- Greer filed successive MSPB appeals in 2015 and 2017; both were dismissed by administrative judges as barred by issue preclusion (collateral estoppel) based on the 2014 decision.
- Greer filed an untimely petition for full-Board review in 2017 and then filed to this court; this Court held the AJ’s February 23, 2017 decision became final March 30, 2017 and Greer’s petition to this court was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction over Greer’s appeal | Greer sought review of the AJ’s 2017 decision and timely filed to this court | Air Force argued no final Board decision existed because Greer’s untimely MSPB petition for review remained pending | Court held AJ’s decision became final March 30, 2017; Greer’s petition to this court was timely and court has jurisdiction |
| Whether Greer’s 2017 appeal is barred by issue preclusion | Greer contested jurisdiction despite prior rulings, arguing the Board should hear the removal | Air Force argued the identical jurisdictional waiver issue was already adjudicated in 2014 and bars relitigation | Court held issue preclusion applies: the issue was identical, actually litigated, necessary to the prior decision, and Greer was represented; appeal barred |
Key Cases Cited
- Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380 (Fed. Cir. 2008) (MSPB jurisdictional determinations reviewed de novo)
- Morgan v. Dep’t of Energy, 424 F.3d 1271 (Fed. Cir. 2005) (four-factor test for applying issue preclusion to MSPB matters)