Nicholas Rosenlicht v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS Z. ROSENLICHT, DOCKET NUMBER
Appellant, SF-0845-18-0592-I-1
v.
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
3
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.4
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
2
The appellant withdrew his request for a hearing. IAF, Tab 3 at 4.
5
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
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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).
3
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.
7
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
8
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
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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
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
4
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.
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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.