Gossage v. Merit Sys. Prot. Bd.

HENRY GOSSAGE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent

2021-1458

United States Court of Appeals for the Federal Circuit

June 11, 2021

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. SF-3330-20-0625-I-1.

HENRY GOSSAGE, Olympia, WA, pro se.

STEPHEN FUNG, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH.

Before MOORE, Chief Judge, LOURIE and DYK, Circuit Judges.

PER CURIAM.

Henry E. Gossage appeals from the decision of the Merit Systems Protection Board ("Board") denying his request for corrective action. The Board found that Gossage is barred by collateral estoppel from relitigating the untimeliness of the administrative complaint that he filed with the United States Department of Labor ("DOL"). See Gossage v. OPM, No. SF-3330-20-0625-I-1, 2020 WL 6877635 (M.S.P.B. Nov. 19, 2020); SAppx. 1-15. For the reasons below, we affirm.

BACKGROUND

This appeal is the latest in a long and convoluted history of Gossage's myriad attempts to relitigate issues relating to a denial of a job application that occurred more than twenty years ago. Each attempt has been premised on the same set of facts. And with each attempt, Gossage has proceeded up the appellate ladder, beginning in DOL, then to the Board, then to this court, and then, on one occasion, to the Supreme Court.¹

As early as 2011, the Board decided that one of Gossage's administrative complaints was untimely and that he was not entitled to equitable tolling of the deadline. In 2013, the Board decided that another one of Gossage's complaints was untimely. The Board then applied collateral estoppel to bar him from relitigating the untimeliness issue with respect to two additional complaints and alsofound that those complaints were untimely even if collateral estoppel did not apply.

In the case underlying the current appeal, Gossage filed yet another administrative complaint with DOL. The Board again applied collateral estoppel to bar Gossage from relitigating the untimeliness issue with respect to this latest complaint. See SAppx. 1-15. In doing so, the Board determined that, at this point, the untimeliness of Gossage's complaints has been adjudicated to finality. To emphasize that reality, we begin by piecing together the timeline and procedural history of Gossage's numerous proceedings.

I. First Appeal to the Board

Gossage served in the army from 1971 through 1974 and has a service-connected disability rated at thirty percent or more. See Initial Decision, Gossage v. Dep't of Labor, No. SF-4324-11-0228-B-1, 2012 MSPB LEXIS 6901, at *1 (Nov. 20, 2012). In 1992, he pleaded guilty to rape, and he subsequently spent three years in prison. Id.

In 1997, Gossage applied for a job as an industrial hygienist with DOL's Occupational Safety and Health Administration ("OSHA"). See id. Although Gossage was eligible for a veteran's preference in hiring under the Veterans Employment Opportunity Act of 1998 ("VEOA"), the Office of Personnel Management ("OPM") granted permission for OSHA to pass him over because of his criminal history. See id. at *2. OPM also issued a negative suitability determination debarring him from eligibility for federal positions for three years. Id. Gossage appealed to the Board, which affirmed OPM's decision. See id.; see also Gossage v. OPM, No. SE-0731-98-0139-I-1 (June 30, 1998), review denied, 81 M.S.P.R. 651 (1998), appeal dismissed, 215 F.3d 1340 (Fed. Cir. 1999).

II. Second Appeal to the Board

On September 5, 2000, shortly after the three-year debarment period expired, Gossage again applied for a job as an industrial hygienist. OSHA again requested permission from OPM to pass over Gossage's application, and on November 30, 2000, OPM issued a written decision granting OSHA's request. SAppx. 107. On May 16, 2001, OPM issued another negative suitability determination and debarred Gossage from federal employment for another two years.² SAppx. 109-12.

Gossage then proceeded along a number of different avenues to challenge OPM's actions. First, on June 8, 2001, he filed an appeal at the Board—MSPB Docket No. SE-0731-01-0261-I-1—in which he challenged OPM's negative suitability determination and his non-selection for the position of industrial hygienist. See Gossage v. Dep't of Labor, 118 M.S.P.R. 455, 457 (M.S.P.B. 2012). Next, on July 1, 2001, Gossage filed an administrative complaint with DOL's Veterans' Employment and Training Service ("VETS") alleging that OSHA had violated his veterans' preference rights under the VEOA, but VETS later informed him that his claim against OSHA lacked merit. See id. Then, on July 3, 2001, Gossage filed an administrative complaint with DOL alleging that his non-selection for the position violated his rights under the VEOA, and on July 18, 2001, DOL informed him of its finding that his rights were not violated.

Gossage proceeded to prosecute his appeal at the Board regarding the negative suitability determination. On April 22, 2002, the Administrative Judge ("AJ") grantedOPM's motion to dismiss the appeal based on collateral estoppel grounded in the Board's affirmance of OPM's earlier unsuitability determination. See Gossage v. OPM, 163 F. App'x 909, 910-11 (Fed. Cir. 2006). Although the Board split on disposition of Gossage's appeal, the AJ's decision became the final decision of the Board. Id at 911. Gossage appealed to this court, and we vacated the dismissal and remanded to the Board for determination whether OPM's May 2001 decision was an appealable unsuitability determination and whether it was supported by substantial evidence. Id. at 912. We found that collateral estoppel did not resolve the issue because, while Gossage's criminal conviction remained on the record, an unsuitability determination involves additional considerations, including subsequent good behavior. Id.

In July 2008, on remand from this court, the AJ affirmed OPM's determination that Gossage was not suitable for employment and the Board affirmed that decision on March 24, 2009. Gossage v. OPM, 111 M.S.P.R. 107, 107 (M.S.P.B. 2009). In its final order, the Board specifically noted that Gossage "may now file appeals under the Veterans Employment Opportunities Act of 1998 [(VEOA)] and Uniformed Services Employment and Reemployment Rights Act of 1994 [("USERRA")], which he delayed filing pending resolution of this appeal." Id.

III. Third and Fourth Appeals to the Board

On December 29, 2010, Gossage filed two more Board appeals—his third and fourth Board appeals overall—one under the VEOA and the other under USERRA. In his VEOA appeal, MSPB Docket No. SF-3330-11-0227-I-1, Gossage alleged that his non-selection for the position of industrial hygienist constituted a violation of the VEOA. See Initial Decision, Gossage v. Dep't of Labor, No. SF-3330-11-0227-I-1, 2011 MSPB LEXIS 3249, at *1 (M.S.P.B. May 23, 2011). The AJ found that his claim was untimely because it was not filed within 15 days of the July 18, 2001 letter from DOL notifying him that his VEOA claim was without merit. Id. at *3. The AJ then determined that Gossage was not entitled to equitable tolling of that deadline due to the intervening appeal of OPM's negative suitability determination because "the Board's Final Order in his suitability appeal expressly advised him that he could file such a separate appeal as of March 24, 2009" but Gossage "instead waited approximately 21 additional months before filing the present appeal." Id. at *7. On August 10, 2012, the Board adopted the AJ's initial decision. Gossage v. Dep't of Labor, 118 M.S.P.R. 421 (M.S.P.B. 2012). Gossage appealed to this court, and we affirmed. Gossage v. Merit Systems Protection Bd., 513 F. App'x 981 (Fed. Cir. 2013).

In his USERRA appeal, MSPB Docket No. SF-4324-11-0228-I-1, Gossage argued that OSHA discriminated against him based on his military service. See 2012 MSPB LEXIS 6901, at *1. The AJ dismissed the appeal on the ground that Gossage had filed a complaint with DOL and had not exhausted that process, but the Board reversed and remanded for a hearing on the USERRA claim. Gossage v. Dep't of Labor, 118 M.S.P.R. 455 (M.S.P.B. 2012). On remand, the AJ denied Gossage's request for corrective action under USERRA on the merits because Gossage "did not meet his burden of proving that his military service was a substantial or motivating factor in the agency's decision not to hire him." Initial Decision, Gossage v. Dep't of Labor, No. SF-4324-11-0228-B-1, 2012 MSPB LEXIS 6901, at *14 (M.S.P.B. Nov. 20, 2012), review denied, 120 M.S.P.R. 75 (M.S.P.B. 2013).

IV. Fifth, Sixth, and Seventh Appeals to the Board

Within one day of this court's affirmance of the Board's decision regarding Gossage's VEOA claim on May 13, 2013, See 513 F. App'x 981, Gossage filed a new administrative complaint with DOL alleging that his non-selection for the industrial hygienist position violated his rights under the VEOA. Similarly, within one day of the Board's final decision regarding Gossage's USERRA claim on September 27, 2013, see 120 M.S.P.R. 75, Gossage filed another new administrative complaint alleging violation of the VEOA. And between those events, Gossage filed a third new administrative complaint alleging violation of the VEOA. Regarding each of the three new administrative complaints, DOL notified Gossage that it would not investigate the complaint because it was untimely, and Gossage proceeded to file three more Board appeals—MSPB Docket Nos. SF-3330-13-0517-I-1, SF-3330-14-0004-I-1, and SF-3330-14-0078-I-1—his fifth, sixth, and seventh Board appeals, respectively.

On July 10, 2013, the AJ issued an initial decision in MSPB Docket No. SF-3330-13-0517-I-1 denying corrective action because the May 13, 2013 administrative complaint was untimely. See Initial Decision, Gossage v. Dep't of Labor, No. SF-3330-13-0517-I-1, 2013 MSPB LEXIS 3649, at *8 (...