UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
HODARI DANIELS, DOCKET NUMBER Appellant, SF-0831-20-0727-I-1
v.
OFFICE OF PERSONNEL DATE: August 7, 2024 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Herb Thomas , Alameda, California, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed the appeal for lack of jurisdiction, and to the extent the Board has jurisdiction based on the January 2, 2019 Office of Personnel Management
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
(OPM) reconsideration decision, 2 as barred by the doctrines of res judicata and/or collateral estoppel. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the appeal is barred by res judicata, we AFFIRM the initial decision. On review, the appellant asserts that he filed another application with OPM 3 for retirement benefits as a dependent child incapable of self-support with new evidence sometime after the adjudication of his prior Board appeal but OPM refused to review it and stated that its January 2, 2019 reconsideration decision was final. Petition for Review (PFR) File, Tab 1 at 3. The administrative judge noted that the appellant did not provide documents in support of his claim, even after a second show cause order explicitly directed him to do so. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 7; IAF, Tab 6 at 1-2. The administrative judge found that a reference to a prior final decision and prior
2 As set forth in the initial decision, the OPM reconsideration decision was incorrectly dated January 2, 2018, and it should have been dated January 2, 2019. Initial Appeal File, Tab 9, Initial Decision at 4; IAF, Tab 1 at 12. 3 In his response to the show cause order, the appellant identified the date of this application as July 30, 2019. IAF, Tab 5 at 4. 3
litigation does not constitute a new final decision that is appealable to the Board. ID at 7. Thus, the administrative judge dismissed for lack of jurisdiction the appellant’s claim of OPM’s refusal to consider the new evidence he submitted with another application. ID at 7. We discern no reason to disturb the administrative judge’s finding in this regard. The appellant also asserts that the doctrine res judicata is inapplicable. PFR File, Tab 1 at 4. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties or their privies based on the same cause of action. Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 25 (2016). Thus, res judicata prohibits parties from relitigating issues that were, or could have been, raised in the prior action, and is applicable if the following criteria are met: (1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Id. Contrary to the administrative judge’s conclusion, the criteria for res judicata were not met in this appeal. ID at 8. The prior decision to which the administrative judge gave preclusive effect in this case was the decision affirming OPM’s dismissal of the appellant’s request for reconsideration as untimely. Daniels v. Office of Personnel Management, MSPB Docket No. SF-0831-19-0223-I-1, Initial Decision (June 17, 2019). Res judicata is generally inapplicable when the merits of an agency action are not examined. Vargo v U.S. Postal Service, 66 M.S.P.R. 156, 159 (1994). A decision concerning the timeliness of a request for reconsideration before OPM is not a decision on the merits. Muyco v. Office of Personnel Management, 114 M.S.P.R. 694, ¶ 10 (2010). We therefore find that the instant appeal is not barred by res judicata, and we vacate the administrative judge’s finding on that issue. However, unlike res judicata, a decision on the merits is not necessary for a finding of collateral estoppel. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 4
341 (1995). Collateral estoppel is appropriate when the following conditions are met: (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 of 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 earlier action or as one whose interests were otherwise fully represented in that action. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). The administrative judge correctly found that, even if res judicata was inapplicable, the appeal is barred by collateral estoppel. ID at 9. Specifically, to the extent the Board has jurisdiction based on the January 2, 2019 OPM reconsideration decision, the doctrine of collateral estoppel precludes the appellant from relitigating the prior decision to affirm the OPM reconsideration decision finding his reconsideration request untimely filed. ID at 9-10.
NOTICE OF APPEAL RIGHTS 4 The initial decision, as supplemented by this Final Order, constitutes the Board's final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
HODARI DANIELS, DOCKET NUMBER Appellant, SF-0831-20-0727-I-1
v.
OFFICE OF PERSONNEL DATE: August 7, 2024 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Herb Thomas , Alameda, California, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed the appeal for lack of jurisdiction, and to the extent the Board has jurisdiction based on the January 2, 2019 Office of Personnel Management
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 judges 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
(OPM) reconsideration decision, 2 as barred by the doctrines of res judicata and/or collateral estoppel. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the appeal is barred by res judicata, we AFFIRM the initial decision. On review, the appellant asserts that he filed another application with OPM 3 for retirement benefits as a dependent child incapable of self-support with new evidence sometime after the adjudication of his prior Board appeal but OPM refused to review it and stated that its January 2, 2019 reconsideration decision was final. Petition for Review (PFR) File, Tab 1 at 3. The administrative judge noted that the appellant did not provide documents in support of his claim, even after a second show cause order explicitly directed him to do so. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 7; IAF, Tab 6 at 1-2. The administrative judge found that a reference to a prior final decision and prior
2 As set forth in the initial decision, the OPM reconsideration decision was incorrectly dated January 2, 2018, and it should have been dated January 2, 2019. Initial Appeal File, Tab 9, Initial Decision at 4; IAF, Tab 1 at 12. 3 In his response to the show cause order, the appellant identified the date of this application as July 30, 2019. IAF, Tab 5 at 4. 3
litigation does not constitute a new final decision that is appealable to the Board. ID at 7. Thus, the administrative judge dismissed for lack of jurisdiction the appellant’s claim of OPM’s refusal to consider the new evidence he submitted with another application. ID at 7. We discern no reason to disturb the administrative judge’s finding in this regard. The appellant also asserts that the doctrine res judicata is inapplicable. PFR File, Tab 1 at 4. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties or their privies based on the same cause of action. Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 25 (2016). Thus, res judicata prohibits parties from relitigating issues that were, or could have been, raised in the prior action, and is applicable if the following criteria are met: (1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Id. Contrary to the administrative judge’s conclusion, the criteria for res judicata were not met in this appeal. ID at 8. The prior decision to which the administrative judge gave preclusive effect in this case was the decision affirming OPM’s dismissal of the appellant’s request for reconsideration as untimely. Daniels v. Office of Personnel Management, MSPB Docket No. SF-0831-19-0223-I-1, Initial Decision (June 17, 2019). Res judicata is generally inapplicable when the merits of an agency action are not examined. Vargo v U.S. Postal Service, 66 M.S.P.R. 156, 159 (1994). A decision concerning the timeliness of a request for reconsideration before OPM is not a decision on the merits. Muyco v. Office of Personnel Management, 114 M.S.P.R. 694, ¶ 10 (2010). We therefore find that the instant appeal is not barred by res judicata, and we vacate the administrative judge’s finding on that issue. However, unlike res judicata, a decision on the merits is not necessary for a finding of collateral estoppel. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 4
341 (1995). Collateral estoppel is appropriate when the following conditions are met: (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 of 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 earlier action or as one whose interests were otherwise fully represented in that action. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). The administrative judge correctly found that, even if res judicata was inapplicable, the appeal is barred by collateral estoppel. ID at 9. Specifically, to the extent the Board has jurisdiction based on the January 2, 2019 OPM reconsideration decision, the doctrine of collateral estoppel precludes the appellant from relitigating the prior decision to affirm the OPM reconsideration decision finding his reconsideration request untimely filed. ID at 9-10.
NOTICE OF APPEAL RIGHTS 4 The initial decision, as supplemented by this Final Order, constitutes the Board's final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your
4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 7
Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.