Opinion

Hodari Daniels v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Aug 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HODARI DANIELS, DOCKET NUMBER

Appellant, SF-0831-20-0727-I-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

(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

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.

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.

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,

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

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.

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.

(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:

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).

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.

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