Opinion

Sherry Robinson v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jun 3, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHERRY ROBINSON, DOCKET NUMBER

Appellant, PH-0752-25-0074-I-1

DEPARTMENT OF DEFENSE, DATE: June 3, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sherry Robinson , Woodbridge, Virginia, pro se.

Samuel F. Lazzaro, Jr. , Esquire, Fort Meade, Maryland, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal based on res judicata. On petition for review, she argues

that the reclassification of her position to a lower grade after a desk audit was

unfair. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 dismiss the appeal based on

collateral estoppel, we AFFIRM the initial decision.

The appellant, who began work with the agency in 2010, was a GS-11

Management Analyst when she requested a desk audit on February 25, 2019.

Initial Appeal File (IAF), Tab 4 at 4-5, Tab 5 at 6. The agency issued a

memorandum concluding that her position should be classified at the GS-08 level

and downgraded it to that level. IAF, Tab 4 at 4-5; Robinson v. Department of

Defense, MSPB Docket No. PH-0752-23-0132-I-1, Initial Appeal File

(0132 IAF), Tab 7 at 129, 130-41. She received grade retention for 2 years and

pay retention of her GS-11 pay while she remained in her current position. IAF,

Tab 4 at 5; 0132 IAF, Tab 7 at 129, 139-40, Tab 8 at 5. The appellant appealed

the results of the desk audit, and a July 14, 2021 Classification Appeal Decision

found that the proper classification of her position was as a Security Assistant

(OA), GS-07. 0132 IAF, Tab 7 at 68-80.

On February 2, 2023, the appellant filed an appeal with the Board. 0132

IAF, Tab 1. Therein, she alleged that the agency failed to follow its

reorganization procedures, engaged in a prohibited personnel practice (reprisal),

and discriminated against her when it reduced her grade in the desk audit. 0132

IAF, Tab 12, Initial Decision (0132 ID) at 1. In a May 25, 2023 initial decision,

the administrative judge dismissed the appeal for lack of jurisdiction, finding that

the Board does not have jurisdiction over a reclassification if there is no

reduction in pay. 0132 ID at 4-5 (citing Wilson v. Merit Systems Protection

Board, 807 F.2d 1577, 1579 (Fed. Cir. 1986)).

Thereafter, on November 1, 2024, the appellant filed the instant appeal

with the Board related to the same downgrade of her position. IAF, Tab 1. In the

December 12, 2024 initial decision, the administrative judge dismissed the appeal

on the basis of res judicata. IAF, Tab 6, Initial Decision (ID) at 3-4. The

administrative judge determined that res judicata applied because the appellant

was arguing the same issues that she had raised in a previous Board appeal that

was dismissed for lack of jurisdiction, and “the appellant’s demotion/reduction in

grade/pay was fully and finally adjudicated by the Board.” ID at 3.

The Board has held that res judicata is not applicable to a prior decision

that dismissed an appeal for lack of jurisdiction. Armas v. Department of Justice,

71 M.S.P.R. 244, 248 (1996). Res judicata is a basis for dismissing a claim over

which the Board has jurisdiction, and the administrative judge did not find that

the Board had jurisdiction over the appellant’s earlier appeal with the Board when

he dismissed it. 0132 ID at 4-5; see Hicks v. U.S. Postal Service, 114 M.S.P.R.

232, ¶ 12 (2010). Accordingly, we find that the administrative judge erred in

dismissing the appeal on this basis.

When a first action was dismissed for lack of jurisdiction, as it was here,

the doctrine of res judicata will not normally preclude the appellant from bringing

the same action again. A second action in the same forum, however, might be

barred by the doctrine of collateral estoppel, which precludes relitigation of the

same jurisdictional issue. Batiste v. U.S. Postal Service, 100 M.S.P.R. 369, ¶ 11

(2005). Collateral estoppel is appropriate when: (1) an 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 to be precluded was fully represented in the

prior action. Id., ¶ 12.

First, the issues here are identical to the ones involved in the prior action.

Compare ID at 1, with 0132 ID at 1. Second, the issue of jurisdiction was

actually litigated in the prior action. See Fisher v. Department of Defense,

64 M.S.P.R. 509, 514 (1994) (holding that the “actually litigated” criterion

requires that the issue be contested by the parties and resolved by an adjudicator).

Third, the administrative judge’s determination that the Board lacked jurisdiction

in the earlier appeal was his sole justification for dismissing the first appeal.

0132 ID at 5. Fourth, the appellant was fully represented in the prior action

because she had a full and fair chance to ligate the issue in question. See Fisher,

64 M.S.P.R. at 515. For these reasons, we find that the appellant’s claims are

barred by collateral estoppel. We modify the initial decision accordingly.

NOTICE OF APPEAL RIGHTS 2

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

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.

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.

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. 3 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 following