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Issue preclusion establishes in a later trial on a different claim identical issues resolved in an earlier trial, if certain conditions are met. First, the issue must have been actually litigated, that is, contested by the parties and submitted for determination by the court. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in the first trial.
Jeffrey Otherson formerly worked as a border patrol agent for the Immigration and Naturalization Service (INS). INS discharged him after he and a co-worker received criminal convictions for physically abusing aliens according to a prearranged scheme they carried out during working hours with apparent zest. When Otherson appealed his discharge, the Merit Systems Protection Board (MSPB) held that the doctrine of issue preclusion, also known as collateral estoppel, forbade him from relitigating the facts established at the criminal trial. It also found discharge appropriate given the nature of Otherson's misconduct. Otherson filed a request for review of an order of the MSPB asserting that issues determined at his prior criminal trial were not preclusively established at later MSPB adverse action hearings, that issue preclusion was not appropriate, and that his discharge was not an appropriate sanction.
Did the MSPB properly find preclusion appropriate in the particular circumstances of this case?
The court held that there was no great unfairness in holding Otherson to the determinations made in his prior criminal conviction. The court that convicted Otherson did so after review of the facts of the case and by finding him guilty beyond a reasonable doubt. Given that the government had to prove misconduct at the MSPB hearing by a mere preponderance of the evidence, it was not unfair to apply issue preclusion and to use his convictions at the later hearing. Therefore, the petition for review was denied.