Opinion

Nicholas Rosenlicht v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NICHOLAS Z. ROSENLICHT, DOCKET NUMBER

Appellant, SF-0845-18-0592-I-1

OFFICE OF PERSONNEL DATE: March 25, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nicholas Z. Rosenlicht , Berkeley, California, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his appeal regarding former spouse and current spouse survivor

annuities for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Nonetheless, we VACATE

the initial decision and DISMISS the appeal for lack of jurisdiction because the

appellant is collaterally estopped from relitigating the jurisdictional issue.

BACKGROUND

The appellant retired under the Federal Employees’ Retirement System in

November 2014. Initial Appeal File (IAF), Tab 5 at 7-8, 19. He subsequently

requested that the Office of Personnel Management (OPM) issue a

reconsideration decision on a variety of issues including the apportionment of his

annuities for his former spouse’s survivor annuity and an overpayment issue. Id.

at 12-13, 15, 17-18. Although OPM had provided him with an opportunity to

finalize his annuity election for his current spouse, the appellant did not make an

election. Id. at 13-15. Instead, he expressed to OPM that his decision “would

depend on the outcome of the decision regarding the former spouse survivor

annuity.” Id. at 18. In December 2017, OPM issued a reconsideration decision

solely on the overpayment issue. Id. at 19-21. It subsequently rescinded that

decision. Rosenlicht v. Office of Personnel Management, MSPB Docket No. SF-

0845-18-0150-I-1, Appeal File, Tab 7 at 4. OPM ultimately concluded that it

assessed the overpayment in error. IAF, Tab 5 at 22.

The appellant subsequently filed two appeals with the Board. In initial

decisions, the administrative judge considered the appellant’s claims regarding

his former spouse and current spouse survivor annuities but found that, because

OPM had not issued a final decision, the Board lacks jurisdiction. Rosenlicht v.

Office of Personnel Management, MSPB Docket No. SF-0845-18-0259-I-1, Initial

Decision at 3-6 (Mar. 29, 2018); Rosenlicht v. Office of Personnel Management,

SF-0845-18-0150-I-1, Initial Decision at 3-4 (Jan. 19, 2018). Neither party filed

a petition for review of these decisions, and they are now final. See 5 C.F.R.

§ 1201.113 (explaining that an initial decision generally becomes final 35 days

after issuance absent a petition for review).

The appellant filed the instant appeal challenging OPM’s decision that his

former spouse was entitled to a survivor annuity and the reductions of his annuity

payments for a current spouse survivor annuity. IAF, Tab 1 at 4, Tab 5 at 4,

13-15. The administrative judge issued an order informing the appellant of the

applicable jurisdictional criteria and his burden of proving that the Board has

jurisdiction over his appeal. IAF, Tab 4 at 2-4. The appellant argued that OPM’s

December 2017 reconsideration decision included a final decision on the spousal

annuity issues. IAF, Tab 5 at 4-6. According to the appellant, the Board retained

jurisdiction over the December 2017 reconsideration decision because OPM had

failed to refund monies it collected as a result of its rescinded decision. Id.

at 5-6.

OPM responded by filing a motion to dismiss the appeal arguing, in

pertinent part, that “[t]he Board’s jurisdiction is limited to matters addressed by

OPM in its final decision,” and OPM had not issued a final decision on the

matters raised by the appellant in his appeal. IAF, Tab 7 at 4. OPM further

stated that, “the appellant will receive a final decision addressing is [sic] survivor

annuity issue.” Id.

Based on the written record, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction. 2 IAF, Tab 9, Initial

Decision (ID). The administrative judge found that the appellant’s

November 2017 request for reconsideration did not request reconsideration

regarding the current spouse survivor annuity and thus OPM had not issued a

final decision on this issue. ID at 11-12. She further found that the

December 2017 reconsideration decision was not a final agency decision on the

former spouse survivor annuity issue. ID at 9-10. Thus, the administrative judge

found that there was no reconsideration decision over which the Board could

exercise jurisdiction. ID at 12.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. OPM has filed a response, to which the appellant has replied. PFR

File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the Office of the Clerk of the Board issued an order directing

the appellant to show cause as to why his appeal should not be dismissed as

barred by collateral estoppel. PFR File, Tab 6. In response, the appellant argues

that, at the time the initial decisions were issued in his prior appeals, it was not

evident that OPM would not fully rescind its decision and restore him to the

status quo ante. PFR File, Tab 7 at 4. For the reasons discussed below, we find

that the appellant’s claim is barred by collateral estoppel, and, as a result, the

Board lacks jurisdiction over the instant appeal.

Collateral estoppel, or issue preclusion, 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 of the issue in the prior action was

necessary to the resulting judgment, and (4) the party precluded had a full and

fair opportunity to litigate the issue in the prior action. Hau v. Department of

The appellant withdrew his request for a hearing. IAF, Tab 3 at 4.

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). Collateral

estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a

jurisdictional determination in a prior decision is afforded collateral estoppel

effect and the appellant provides no other valid basis for Board jurisdiction. Id.

In the instant appeal, the appellant again argues that the December 2017

reconsideration decision was a final decision on the spousal annuity issues and its

rescission entitles him to be returned to the status quo ante. PFR File, Tab 1

at 5-8, Tab 7 at 4. The administrative judge in the appellant’s prior appeals found

that the December 2017 reconsideration decision was not a final decision on the

spousal annuities issues and, therefore, the Board lacked jurisdiction. Rosenlicht

v. Office of Personnel Management, MSPB Docket No. SF-0845-18-0259-I-1,

Initial Decision at 3-6 (Mar. 29, 2018) (finding that a final decision had not been

issued on the spousal annuity issues and thus they are not

within the Board’s jurisdiction); Rosenlicht v. Office of Personnel Management ,

SF-0845-18-0150-I-1, Initial Decision at 3-4 (Jan. 19, 2018) (finding that the

December 2017 reconsideration decision only addressed whether the appellant

was overpaid annuity supplement benefits and did not include a final decision on

the spousal annuity issues). Thus, the identical jurisdictional issue was litigated

in both the prior appeals.

Further, the administrative judge’s jurisdictional findings were necessary

for the dismissal of the appeals on that basis, the appellant was a party, and he

had a full and fair opportunity to litigate his claims. The appellant is thus

precluded from litigating this issue again, which is the sole basis of his claim in

this matter.

Accordingly, we dismiss this appeal for lack of jurisdiction. We vacate the

administrative judge’s jurisdictional determination, which was based on the lack

of a reconsideration decision as to the spousal annuity issues appealed.

ID at 9-12. The purpose of collateral estoppel is to avoid the costs and vexation

caused by repetitive lawsuits. Hau, 123 M.S.P.R. 620, ¶ 16. To continue to

revisit the jurisdictional issue on the same grounds as in the two now-final initial

decisions would risk additional costs and could lead to inconsistent decisions.

See id.

NOTICE OF APPEAL RIGHTS 3

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.

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).

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.

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. 4 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).

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