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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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