M. Carmen Luna v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

M. CARMEN LUNA, DOCKET NUMBER

Appellant, DA-0752-14-0378-I-1

v.

DEPARTMENT OF VETERANS DATE: April 29, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Anthony Rogers, San Antonio, Texas, for the appellant.

Thomas Herpin, Esquire, Houston, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

applied the doctrine of collateral estoppel and dismissed the appeal for lack of

jurisdiction. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the 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. See

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, and based on the

following points and authorities, 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 and dismiss the appeal for lack of

jurisdiction. Except as expressly MODIFIED by this Final Order, we AFFIRM

the initial decision.

BACKGROUND

¶2 Effective June 30, 2003, the appellant separated from her position with the

Department of Health and Human Services (HHS), Food and Drug Administration

(FDA). Luna v. Department of Veterans Affairs, MSPB Docket No. DA-0752-10-

0378-I-1 (0378), Initial Appeal File (IAF), Tab 7 at 23. The Standard Form (SF)

50 documenting her separation indicated that the appellant had separated under

the Civil Service Retirement System (CSRS) pursuant to the “early out”

retirement provisions of 5 U.S.C. § 8336(d)(2). 0378, IAF, Tab 7 at 23. The

agency hired the appellant effective February 5, 2006, id. at 33, and she continued

to receive her CSRS annuity during her reemployment. Effective February 23,

2010, the agency terminated the appellant for various misconduct without notice

of appeal rights to the Board. Id. at 35.

¶3 The appellant filed an appeal of her termination with the Board and

requested a hearing. Luna v. Department of Veterans Affairs, MSPB Docket No.

DA-0752-10-0294-I-1 (0294), IAF, Tab 1 at 2, Tab 9, Subtabs 4m, 4r. She denied

3

the misconduct and claimed that the agency had committed harmful procedural

error by failing to provide her Board appeal rights in the termination notice.

0294, IAF, Tab 1 at 3, 6. The agency filed a motion to dismiss, arguing that the

Board lacks jurisdiction over the appeal because the appellant was a reemployed

annuitant and thus had no right to appeal her termination to the Board. 0294,

IAF, Tab 4.

¶4 The administrative judge issued a show cause order in which she advised

the appellant that a reemployed annuitant receiving an annuity serves at the will

of the appointing authority and generally has no right to appeal her termination to

the Board. 0294, IAF, Tab 5 at 1. The administrative judge directed the

appellant to file evidence and/or argument to prove that the Board has jurisdiction

over her appeal. Id. at 2. She directed the agency to file evidence to show

whether the appellant was a reemployed annuitant. Id. Both parties filed

responses to the order. 0294, IAF, Tabs 10-11.

¶5 Without holding the requested hearing, the administrative judge issued an

initial decision on April 5, 2010, dismissing the appeal for lack of jurisdiction

based on her finding that the appellant was a reemployed annuitant at the time of

her termination. Luna, MSPB Docket No. DA-0752-10-0294-I-1, Initial Decision

(Apr. 5, 2010). The appellant filed a petition for review of the initial decision,

arguing, inter alia, that the Board has jurisdiction over her appeal because she

separated from the FDA pursuant to a Discontinued Service Retirement (DSR).

0294, Petition for Review (PFR) File, Tab 1 at 4. The Board denied the

appellant’s petition for review by final order, noting that the SF 50 documenting

the appellant’s separation shows that she retired under the early-out provisions of

5 U.S.C. § 8336(d)(2), not under a DSR. Luna, MSPB Docket No. DA-0752-10-

0294-I-1, Final Order at 3 (Nov. 10, 2010) (citing 0294, IAF, Tab 9, Subtab 4w.)

4

¶6 On March 17, 2014, 2 the appellant filed another Board appeal of her

termination and requested a hearing. 0378, IAF, Tab 1. The administrative judge

issued an order notifying the appellant of the criteria for applying the doctrine of

collateral estoppel, informing her that these requirements appeared to be met in

this case, and directing her to file evidence and argument to show why her appeal

should not be barred under that doctrine. 0378, IAF, Tab 2.

¶7 In response, the appellant asserted that on February 24, 2014, HHS

cancelled the SF-50 documenting her 2003 separation and replaced it with a new

SF-50 which establishes that she separated from the FDA under a DSR. 0378,

IAF, Tab 7 at 7; see id. at 25, 27. The appellant contended that she therefore has

the right to appeal her 2010 removal to the Board and that the agency erred by

removing her from her position without complying with the procedures set forth

in 5 U.S.C. § 7513. 0378, IAF, Tab 7 at 7-8.

¶8 Without holding a hearing, the administrative judge issued an initial

decision on July 18, 2014, that dismissed the appeal pursuant to the doctrine of

collateral estoppel. ID at 2, 4. The appellant has filed a petition for review. 3

2

The initial decision identifies the date of filing as April 28, 2014. See 0378, IAF, Tab

9, In itial Decision (ID) at 1. Although the regional office received the appeal by

facsim ile on April 28, 2014, the appeal was filed with the Board by electronic

submission on March 17, 2014. See 0378, IAF, Tab 1; see also 5 C.F.R. § 1201.4(l)

(the date of filing by e-filing is the date of electronic submission).

3

The appellant submitted additional p leadings on November 7, 2014, and December 22,

2014. See 0378, PFR File, Tabs 3-4. The Clerk of the Board rejected the pleadings and

explained that the Board’s regulations do not provide for pleadings other than a petition

for review, a cross petition for review, a response to the petition for review or cross

petition for review, and a reply to the response. Id.; see 5 C.F.R. § 1201.114(a)(5).

The Clerk informed the appellant that she was not permitted to file an additional

pleading without first submitting a motion requesting leave to file such a plead ing.

0378, PFR File, Tabs 3-4. The Clerk further informed the appellant that her motion

must describe the nature and need for the pleading, and demonstrate that any evidence

therein was not readily available before the record closed. Id.

On January 18, 2015, the appellant filed a motion for leave to submit an additional

pleading “to ensure due process.” 0378, PFR File, Tab 5. In particular, she asked to

submit records that indicate that she was an employee when she was removed and,

5

0378, Petition for Review (PFR) File, Tab 1. The agency has not filed a response

to the petition for review.

ANALYSIS

Documents submitted on review.

¶9 The appellant has submitted three documents with her petition for review:

(1) a July 15, 2014 final decision from the Office of Personnel Management

(OPM) affirming its initial decision finding that the appellant was overpaid more

than $300,000 in civil service annuity benefits because she continued to receive

an annuity during her reemployment with the agency even though her retirement

in 2003 was a DSR, 4 0378, PFR File, Tab 1 at 12-15; (2) a copy of an SF-50 dated

February 24, 2014, issued by HHS canceling the SF-50 which identified the

appellant’s 2003 separation as a “Retirement-Special Option,” id. at 17; and (3) a

copy of the July 18, 2014 initial decision in this appeal, id. at 19-25.

¶10 The Board generally will not consider evidence submitted on review absent

a showing that the documents and the information contained in the documents

were unavailable before the record closed despite due diligence. Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980). The Board will not grant a petition

for review based on new evidence absent a showing that it is of sufficient weight

to warrant an outcome different from that of the initial decision. Russo v.

therefore, should have been provided due process by the agency pursuant to 5 U.S.C.

§ 7513. We DENY the motion. As explained further below, because the appellant

continued to receive an annuity during her employment with the agency, she was a

reemployed annuitant when she was terminated. As such, she served at the will of the

agency and thus did not have employee appeal rights under 5 U.S.C. § 7513.

4

On July 27, 2014, the appellant filed a Board appeal challenging OPM’s July 15, 2014

final decision. Luna v. Office of Personnel Management, MSPB Docket No.

DA-831M-14-0569-I-1 (0569), IAF, Tabs 1-2. OPM did not defend the appeal and the

administrative judge issued an initial decision on October 1, 2014, reversing OPM’s

reconsideration decision and ordering OPM to waive collection of the $300,000

overpayment. Luna, MSPB Docket No. DA-831M-14-0569-I-1, Initial Decision

(Oct. 1, 2014). The initial decision in that appeal became final on November 5, 2014,

when neither party filed a petition for review. I d.

6

Veterans Administration, 3 M.S.P.R. 345, 349 (1980). To constitute new and

material evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,

564 (1989).

¶11 We have considered OPM’s July 15, 2014 reconsideration decision because

it postdates the close of the record below and thus was not available despite the

appellant’s due diligence. See 0378, IAF, Tab 2. Also, this document supports

the appellant’s claim that she separated from the FDA under a DSR. However,

both the initial decision and the February 24, 2014 SF-50 issued by HHS are

already part of the record below and thus are not new. Compare PFR File, Tab 1

at 17, 19-25, with IAF, Tab 7 at 25 and ID; see Meier v. Department of the

Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already part of the record is

not new). Therefore, we have not considered these documents.

We decline to apply the doctrine of collateral estoppel to this appeal.

¶12 Collateral estoppel, or issue preclusion, is appropriate when: (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 on 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. McNeil v. Department of Defense,

100 M.S.P.R. 146, ¶ 15 (2005).

¶13 Applying this standard, the administrative judge found that, in the

appellant’s prior appeal, her status as a reemployed annuitant was at issue, the

issue was litigated, the determination on the issue was necessary to the resulting

judgment, and the appellant had a full and fair opportunity to litigate that issue.

ID at 4. Therefore, the administrative judge found that collateral estoppel

7

precluded relitigation of that issue and dismissal of the appeal was appropriate.

ID at 4.

¶14 Assuming, without deciding, that all of the collateral estoppel requirements

are met regarding the appellant’s prior appeal, we decline to apply collateral

estoppel to that appeal. The application of collateral estoppel is discretionary and

the Board need not apply it in every situation in which the criteria are met. See

Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (even when

the requirements for applying collateral estoppel are met, it would not be error to

decline to apply collateral estoppel). The considerations of public economy and

private repose that underlie the doctrine of collateral estoppel must be balanced

against the competing interests of fundamental fairness and due process. Tanner

v. U.S. Postal Service, 94 M.S.P.R. 417, ¶ 15 (2003) (citing Williams v. U.S.

Postal Service, 35 M.S.P.R. 581, 585 (1987), modified on other grounds by

Berkey v. U.S. Postal Service, 42 M.S.P.R. 24, 27-28 (1989)). Thus, even if the

prerequisites for collateral estoppel exist, the reviewing body may refrain from

applying the doctrine if injustice would result or other public policy

considerations would be compromised. Tanner, 94 M.S.P.R. 417, ¶ 15.

¶15 The Board has held that an individual’s reemployment after a DSR under

the CSRS is not as a reemployed annuitant. Colbert v. Department of the Army,

54 M.S.P.R. 492, 495 (1992). The appellant has consistently maintained that she

separated from the FDA in 2003 pursuant to a DSR. See, e.g., 0294, PFR File,

Tab 1 at 4; 0378, IAF, Tab 1 at 6, Tab 7 at 4. At the time of the appellant’s prior

appeal, HHS had not yet documented that her separation was pursuant to a DSR.

Consequently, there was no evidence to support her claim that she retired under a

DSR. Moreover, the evidence in the record contradicted her claim, as the SF-50

documenting her separation indicated that she retired under the early-out

provisions of 5 U.S.C. § 8336(d)(2). See 0294, IAF, Tab 9, Subtab 4w.

¶16 Now, however, the SF-50 (referenced by the Board in its November 10,

2010 Nonprecedential Final Order) has been cancelled and replaced by the SF-50

8

issued in February 2014, which supports the appellant’s contention that her

separation from service was a DSR rather than an early-out retirement. See 0378,

IAF, Tab 7 at 23, 25, 27. Consequently, under the circumstances, we find that it

would be inappropriate to apply collateral estoppel to the appellant’s prior appeal.

The Board lacks jurisdiction over this appeal.

¶17 In assessing whether the Board has jurisdiction over this appeal, we are

guided by the Board’s reasoning in Colbert, 54 M.S.P.R. at 495, and Garza v.

Department of the Navy, 119 M.S.P.R. 91, ¶ 9 (2012). In Colbert, the Board

addressed the issue of whether an individual’s reemployment after a DSR under

the CSRS is as a reemployed annuitant. Colbert, 54 M.S.P.R. at 495. The Board

noted that if an annuitant whose annuity is based on an involuntary separation,

including a DSR, is reemployed in a position subject to 5 U.S.C. chapter 83,

subchapter III, payment of the annuity stops on reemployment. Colbert,

54 M.S.P.R. at 495 (citing 5 U.S.C. § 8344(b); Spiegel v. Department of Defense,

33 M.S.P.R. 165, 168, aff’d, 828 F.2d 769 (Fed. Cir. 1987)). Therefore, the

Board found that the individual’s reemployment after a DSR would not be as a

reemployed annuitant. Colbert, 54 M.S.P.R. at 495.

¶18 Applying the reasoning in Colbert, the Board in Garza noted that, when an

individual who receives a discontinued service annuity under the Federal

Employees’ Retirement System (FERS) is reemployed, the annuity continues and

the amount of the annuity that applies to the period of reemployment is offset

from the reemployed annuitant’s salary. Garza, 119 M.S.P.R. 91, ¶ 9. The Board

held that, under these circumstances, the individual’s reemployment after a DSR

under FERS is as a reemployed annuitant and he therefore has no right to appeal

his separation to the Board. Id.

¶19 Thus, the Board has clearly indicated that the critical factor in determining

whether a reemployed individual is a reemployed annuitant is not whether the

individual previously separated from federal service under a DSR, but, rather,

whether the individual’s annuity stopped upon reemployment. In that regard, we

9

note that in Vesser v. Office of Personnel Management, 29 F.3d 600, 605 (Fed.

Cir. 1994), our reviewing court emphasized that actual receipt of an annuity is a

significant factor in determining the at-will status of a reemployed individual.

¶20 Although it now appears that the appellant separated from the FDA pursuant

to a DSR, the appellant does not dispute that she received a retirement annuity

throughout her reemployment period and at the time of her termination in 2010.

Because the appellant continued to receive a retirement annuity upon

reemployment, she is a reemployed annuitant regardless of whether she retired

under a DSR and, therefore, has no right to appeal her termination to the Board.

See 0569, IAF, Tab 16. Accordingly, we conclude the Board lacks jurisdiction

over this appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. You must submit your request to the court at the following

address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

10

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, 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 Merit Systems Protection Board

neither endorses the services provided by any attorney nor warrants that any

attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.