UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY ANN VARNADO, DOCKET NUMBER
Appellant, AT-0752-13-0039-B-1
v.
DEPARTMENT OF JUSTICE, DATE: July 17, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Hewitt Smith, Tampa, Florida, for the appellant.
Christopher M. De Bono, Esquire, and Marcia N. Tiersky, Esquire,
Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the April 21, 2017 remand
initial decision, which dismissed as moot her appeal from the denial of a
within-grade increase (WIGI). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the remand initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judg es 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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 This case has an extensive procedural history that is set out more fully in
the Board’s January 6, 2017 Remand Order. Varnado v. Department of Justice,
MSPB Docket No. AT-0752-13-0039-M-1, Remand Petition for Review File,
Tab 10, Remand Order (RO), ¶¶ 3-7. The sole remaining issue is the agency’s
February 2007 denial of the appellant’s WIGI. Varnado v. Merit Systems
Protection Board, 603 F. App’x 963, 967-68 (Fed. Cir. 2015); RO, ¶ 10; Varnado
v. Department of Justice, MSPB Docket No. AT-0752-13-0039-M-1, Remand File
(M-1 RF), Tab 21 at 101-02, 107. The administrative judge found that this claim
is moot in the April 21, 2017 remand initial decision that is currently before us on
review. Varnado v. Department of Justice, MSPB Docket No. AT-0752-13-0039-
B-1, Remand File (B-1 RF), Tab 14, Remand Initial Decision (RID) at 1-7.
¶3 Before filing the underlying appeal, the appellant challenged the WIGI
denial in a May 2007 equal employment opportunity (EEO) complaint. B-1 RF,
Tab 6 at 20-21, 27; Varnado v. Department of Justice, MSPB Docket No. AT-
0752-13-0039-I-1, Initial Appeal File (IAF), Tab 1 at 3. Although she requested
that the agency issue a final agency decision on her EEO complaint, it failed to do
so. B-1 RF, Tab 6 at 67. She subsequently filed a Title VII complaint in district
court, but did not specifically raise her WIGI denial as an issue in her district
court complaint. 2 Id. at 71-72. It appears that both parties believed the WIGI
denial would be litigated if the district court case went to a trial. For example,
the agency referenced the WIGI denial in its answer to the complaint, the
appellant conducted discovery on the WIGI denial, and both parties included
2
After the appellant filed in district court, the agency issued a letter advising her that it
was dismissing her EEO complaint because she had filed a Federal district court
complaint. B-1 RF, Tab 6 at 75. The agency notified her of her appeal rights, but did
not include notice of her right to request a hearing before the Board. Id. at 75-76.
3
documentation concerning the WIGI denial in their list of trial exhibits. Id. at 84,
95-99, 179, 190.
¶4 The agency filed a motion for summary judgment and a reply in support of
its motion, neither of which referenced the appellant’s WIGI denial claim. 3 The
appellant filed a reply to the agency’s motion and an amended reply, both of
which identified the WIGI denial among the adverse actions at issue. Id. at 101,
104-05, 126, 162, 164-65. The district court judge granted the agency’s motion
for summary judgment without referencing the appellant’s WIGI denial claim.
Varnado v. Mukasey, No. 08-61331, 2010 WL 2196263 (S.D. Fla. June 1, 2010);
B-1 RF, Tab 7 at 4-11. The appellant filed an appeal to the Eleventh Circuit
Court of Appeals, which the court dismissed for failure to prosecute. B-1 RF,
Tab 7 at 36-37.
¶5 Turning back to the instant appeal, the administrative judge’s April 21,
2017 remand initial decision dismissed the appeal as moot. RID at 1, 6-7.
Specifically, he found that the agency had retroactively granted the appellant’s
WIGI and paid her back pay and interest. RID at 3; M -1 RF, Tab 26 at 11,
Tab 32 at 6-7. He also found that any compensatory damages that the appellant
might seek for her EEO claims concerning the WIGI denial were precluded by
collateral estoppel in light of the district court decision. RID at 3 -6.
¶6 The appellant filed a petition for review challenging, among other things,
the administrative judge’s applying collateral estoppel and dismissing her appeal
as moot. Varnado v. Department of Justice, MSPB Docket No. AT-0752-13-
0039-B-1, Remand Petition for Review (B-1 RPFR) File, Tab 1 at 8-15. The
agency filed a response opposing the petition. B-1 RPFR File, Tab 6.
3
The parties did not provide the agency’s motion for summary judgment or its reply in
support of its motion; however, the Board has obtained copies of both pleadings. See
5 C.F.R. § 1201.64 (providing that an administrative judge may take official notice of
matters that can be verified).
4
¶7 The Board then issued an order informing the parties that there remained a
question of whether the Board has jurisdiction over the appeal. B-1 RPFR File,
Tab 9 at 1. Both parties responded to the Board’s jurisdictional order. 4 B-1
RPFR File, Tabs 12-13.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this appeal.
¶8 The administrative judge found that the Board has jurisdiction over the
appellant’s WIGI denial claim because the appellant requested reconsideration of
the WIGI decision, and that request was denied. M-1 RF, Tab 19 at 1, Tab 21
at 101-02, 107. The parties do not dispute this finding on review, and we decline
to disturb it. 5 U.S.C. § 5335(c); see Goines v. Merit Systems Protection Board,
258 F.3d 1289, 1292 (Fed. Cir. 2001) (interpreting 5 U.S.C. § 5335(c) as
requiring an employee to request reconsideration of a WIGI withholding before
appealing such action to the Board); Brookins v. Department of the Interior,
2023 MSPB 3, ¶ 6 (same); 5 C.F.R. § 531.410(d) (requiring an agency to provide
an employee with notice of Board appeal rights upon denying a request for
reconsideration of a WIGI denial).
¶9 On review, the Office of the Clerk of the Board issued an order to the
parties to address an additional jurisdictional requirement. B-1 RPFR File, Tab 9.
As explained in that order, under the Board’s case law at the time, if an employee
was covered by a collective bargaining agreement (CBA) that provide d for review
of WIGI denials under the grievance procedure, and if she did not allege
prohibited discrimination, then the grievance procedure was the exclusive means
for resolving the dispute. See Hunt v. Department of Veterans Affairs,
88 M.S.P.R. 365, ¶ 8 (2001). However, the Board has since overruled Hunt on
4
The appellant filed a motion for leave to correct her response to the Board’s order that
includes the requested correction. B-1 RPFR File, Tab 14. The agency has not opposed
the motion. We grant the appellant’s motion and find that the correction does not
change the outcome of this appeal.
5
this basis. Brookins, 2023 MSPB 3, ¶¶ 8-10. Further, both parties responded that
the appellant was not covered by a CBA that permits bargaining unit employees
to grieve a WIGI denial, and the appellant alleges that the WIGI denial was
discriminatory. B-1 RPFR File, Tab 12 at 4-5, Tab 13 at 4; see McCann v.
Department of the Navy, 57 M.S.P.R. 288, 294 (1993) (recognizing that the Board
is not divested of jurisdiction by the terms of a CBA providing for exclusivity of
remedy when an appellant alleges discrimination). Accordingly, we affirm the
administrative judge’s jurisdictional finding.
This appeal is not moot and must be remanded for further adjudication of the
appellant’s EEO claims.
¶10 Collateral estoppel, or issue preclusion, 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 prior action or as one whose interests were
otherwise fully represented in that action. Kroeger v. U.S. Postal Service,
865 F.2d 235, 239 (Fed. Cir. 1988); McNeil v. Department of Defense,
100 M.S.P.R. 146, ¶ 15 (2005). The “actually litigated” element is satisfied when
the issue was “properly raised by the pleadings, was submitted for determination,
and was determined.” Banner v. United States, 238 F.3d 1348, 1354 (Fed. Cir.
2001); see Luna v. Department of the Air Force, 87 M.S.P.R. 232, ¶ 8 (2000)
(observing that the “actually litigated” element requires that the issue must have
been contested by the parties and resolved by the adjudicator) .
¶11 Here, we find that the appellant’s EEO claims regarding the WIGI denial
were not actually litigated in the district court action, as required for applying
collateral estoppel. The agency did not squarely raise the issue in its motion for
summary judgment. The appellant’s references to her WIGI denial in her
opposition to the agency’s motion were insufficient to clearly place the issue
6
before the district court judge. Further, the district court decision granting the
agency’s motion did not mention the WIGI denial despite referencing other
specific acts of alleged discrimination. Varnado, 2010 WL 2196263, at *2-*3;
B-1 RF, Tab 7 at 7-9; see, e.g., Johnson v. Department of the Air Force,
92 M.S.P.R. 370, ¶ 14 (2002) (finding that an issue was not actually litigated by
the administrative judge when she only discussed the procedural history of the
issue); Luna, 87 M.S.P.R. 232, ¶ 8 (finding that an issue was not actually litigated
in a prior Board appeal when the administrative judge in the earlier appeal only
mentioned the issue and found that it was not properly raised by the appellant ).
Therefore, we find that collateral estoppel does not preclude the appellant’s WIGI
claim.
¶12 If an appellant raises a claim for compensatory damages that the Board has
jurisdiction to adjudicate, the agency’s complete rescission of the action appealed
does not afford her all of the relief available before the Board, and thus, the
appeal is not moot. Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016).
Here, because the appellant’s potential entitlement to compensatory damages
based on her EEO claims regarding the WIGI denial remains unresolved, her
appeal is not moot. Id., ¶¶ 9, 19-20 (finding that the Board has the authority to
award compensatory damages for discrimination and EEO reprisal claims);
5 C.F.R. §§ 1201.201(d), 1201.202(c) (indicating that the Board may award
compensatory damages to a prevailing party who is found to have been the
subject of intentional discrimination). Accordingly, we vacate the April 21, 2017
remand initial decision dismissing the appeal as moot and remand the appeal for
further adjudication of the appellant’s WIGI denial. On remand, the
administrative judge shall allow the parties to develop the record and, if
necessary, he should hold a hearing. See Hess v. U.S. Postal Service,
123 M.S.P.R. 183, ¶¶ 9-10 (2016) (remanding the appellant’s EEO claims for a
hearing because she raised a cognizable claim of discrimination in connection
7
with an otherwise appealable action). He should then issue a new remand initial
decision on the merits of the appellant’s WIGI denial claim. 5
¶13 In light of our findings here, we find it unnecessary to reach the appellant’s
remaining arguments on review regarding the application of collateral estoppel,
alleged procedural errors, and the appropriate standard of proof . B-1 RPFR File,
Tab 1 at 10-18. On remand, she may again raise issues regarding the adjudication
of her appeal to the extent they are relevant to the remaining issues. Moreover,
we decline to revisit our prior finding that the appellant’s removal appeal was
untimely filed. Id. at 17-19; Varnado, 603 F. App’x at 965-67.
ORDER
¶14 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
5
The administrative judge may readopt the prior finding of Board jurisdiction.