                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     RUTH WITHERSPOON,                               DOCKET NUMBER
                  Appellant,                         DE-0831-14-0104-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 26, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Michelle Hodges, Simpsonville, South Carolina, for the appellant.

           Christopher H. Ziebarth, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her Civil Service Retirement System (CSRS) survivor annuity claim as
     barred by res judicata and dismissed her remaining retirement claims for lack of
     jurisdiction. Generally, we grant petitions such as this one only when: the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision contains erroneous findings of material fact; the initial decision is based
     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 AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In a prior appeal, the appellant challenged the Office of Personnel
     Management’s (OPM) February 27, 2001 reconsideration decision denying her
     application for a survivor annuity. Initial Appeal File (IAF), Tab 23 at 4. After
     holding a hearing, the administrative judge issued an initial decision affirming
     OPM’s reconsideration decision. Id. at 5, 11. The appellant filed a petition for
     review of the initial decision and the Board issued a Final Order denying her
     petition for review. Id. at 2. Subsequently, the appellant filed an appeal with the
     U.S. Court of Appeals for the Federal Circuit. Id. at 1. On November 7, 2002,
     the Federal Circuit issued a decision affirming the Board’s decision and finding
     that the appellant was not entitled to a survivor annuity. Id. at 1-3.
¶3        OPM issued a letter to the appellant, dated June 18, 2010, indicating that
     she was eligible for survivor annuity payments. IAF, Tab 6 at 5. According to
     OPM, the annuity was granted in error and was terminated as of March 30, 2014.
     IAF, Tab 26 at 5. Further, OPM indicated that once this appeal is resolved, it
                                                                                         3

     “will inform the appellant of the overpayment of erroneous former spouse
     survivor annuity she has been paid, extending reconsideration rights to her”. Id.
     OPM stated that the overpayment exceeded $100,000. Id.
¶4        The appellant filed this appeal challenging OPM’s 2001 reconsideration
     decision and alleging marital status discrimination, reprisal, harmful procedural
     error, and violation of due process. IAF, Tab 1 at 4-7. She later added claims
     that OPM failed to advise her that she could apply for health insurance and life
     insurance, IAF, Tab 11 at 2, Tab 13 at 5, and that OPM improperly canceled its
     2010 award of survivor benefits, IAF, Tab 27 at 5.         The administrative judge
     issued an order advising the appellant of her burden of proof regarding
     jurisdiction over a retirement appeal and noting that it appeared her claims had
     already been adjudicated. IAF, Tab 3 at 2-4. After the parties responded, the
     administrative judge issued an initial decision dismissing as barred by res judicata
     the claim regarding OPM’s 2001 reconsideration decision, and dismissing for lack
     of jurisdiction the appellant’s claims regarding OPM’s 2014 decision to cancel an
     annuity and collect an overpayment. IAF, Tabs 6, 8-9, 11-13, 16, 21, 22, 26; IAF,
     Tab 45, Initial Decision (ID) at 2-3. 2     The appellant has submitted a timely
     petition for review.   Petition for Review (PFR) File, Tabs 1-2.        OPM has not
     responded to the petition for review.

     The appellant’s claim regarding OPM’s February 27, 2001 reconsideration
     decision is barred by res judicata.
¶5        On petition for review, the appellant argues that she is entitled to a survivor
     annuity and provides a list of facts and allegations referring to events that
     occurred prior to the November 7, 2002 Federal Circuit decision. PFR File, Tab 1


     2
       While her appeal was still pending below, the appellant filed a stay request arguing
     that the threatened revocation of a survivor annuity was in reprisal for protected
     disclosures. Witherspoon v. Office of Personnel Management, MSPB Docket No.
     DE-0831-0104-S-1, Stay File (SF), Tab 1. The administrative judge denied the stay
     request, finding that the appellant was unlikely to prevail on her claims. SF, Tab 6,
     Stay Decision.
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     at 2-3.   The administrative judge found that the claim arising out of OPM’s
     February 27, 2001 reconsideration decision is barred by the doctrine of
     res judicata. ID at 2-3. We agree.
¶6         Under the doctrine of res judicata, a valid, final judgment on the merits of
     an action bars a second action involving the same parties or their privies based on
     the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337
     (1995). The doctrine precludes the parties from relitigating issues that were, or
     could have been, raised in the prior action and is applicable if: (1) the prior
     judgment was rendered by a forum with competent jurisdiction; (2) the prior
     judgment was a final judgment on the merits; and (3) the same cause of action
     and the same parties or their privies were involved in both cases. Id.
¶7         In determining whether a prior judgment was rendered by a forum with
     competent jurisdiction under the doctrine of res judicata, the subsequent forum’s
     scope of review is generally limited to ascertaining whether the issue of
     jurisdiction has been fully and fairly litigated and finally decided in the first
     forum.    Id. at 337 n.5. In the instant case, the Board and the Federal Circuit
     found jurisdiction pursuant to 28 U.S.C. § 1295(a)(9), and thus the first element
     of the test for res judicata is met. IAF, Tab 23 at 2.
¶8         The second and third elements are also met. The appellant has provided no
     evidence that she has pursued any further appeals of the Federal Circuit decision.
     Therefore, the Federal Circuit decision was a final judgment on the merits for
     res judicata purposes. Like her prior case, the instant appeal involves the facts
     underlying her appeal of OPM’s February 27, 2001 reconsideration decision. The
     appellant’s attempt to have her appeal heard again before the Board is a second
     action against the same agency based on the same set of facts giving rise to her
     right to seek relief from the denial of a survivor annuity by OPM. Therefore, the
     claim arising out of the 2001 reconsideration decision is barred by res judicata.
¶9         The appellant’s other claims of marital status discrimination, reprisal,
     harmful procedural error, and violation of due process could have been litigated
                                                                                         5

      in the prior appeal, and therefore we decline to consider them for the first time
      here. See Garduque v. Office of Personnel Management, 84 M.S.P.R. 300, ¶ 2
      (1999) (finding that parties were not permitted to return to the Board on the basis
      that they had developed a new theory of their cases).

      The Board lacks jurisdiction over the appellant’s claims regarding Federal
      Employee Health Benefit (FEHB) and federal life insurance.
¶10        The appellant argued below that she was entitled to an FEHB plan and
      federal life insurance as an annuitant.      IAF, Tab 11, at 5.   The administrative
      judge found that the Board lacks jurisdiction over these claims. ID at 3. We
      agree. Claims concerning federal employee life insurance and federal employee
      health insurance programs are generally beyond the Board’s jurisdiction.
      Chamblin v. Office of Personnel Management, 112 M.S.P.R. 266, ¶ 7 (2009).

      The Board lacks        jurisdiction   over    the   termination   of   annuity   and
      overpayment claims.
¶11        On petition for review, the appellant argues that she should be allowed to
      appeal OPM’s April 24, 2014 decision terminating its 2010 decision to award her
      a survivor annuity. PFR File, Tab 1 at 1. Further, she alleges that “OPM has not
      provided [her] with over $100,000.” Id. There is no indication that OPM has
      issued an initial or reconsideration decision regarding the termination of the
      survivor annuity and the overpayment. The administrative judge found that the
      Board lacks jurisdiction over the termination of annuity and overpayment claims.
      ID at 3. We agree.
¶12        The Board generally lacks jurisdiction to hear an appeal of a retirement
      matter when OPM has not issued a reconsideration decision on the matter.
      McLaughlin v. Office of Personnel Management, 62 M.S.P.R. 536, 546 (1994),
      aff’d sub nom. McLaughlin v. U.S. Postal Service, 47 F.3d 1181 (Fed. Cir. 1995)
      (Table).   In the instant case, the Board does not have jurisdiction over the
      termination of annuity and overpayment appeals because there is no evidence that
      OPM has issued a reconsideration decision on these issues.
                                                                                              6

¶13         It appears that the appellant mistakes OPM’s response to her stay request in
      a related appeal to be a reconsideration decision. See PFR File, Tab 1 at 1-2,
      Tab 2 at 4-5. However, the response is not a reconsideration decision because it
      does not fully set forth the findings and conclusions on reconsideration and
      does not contain notice of appeal rights. See 5 C.F.R. § 831.109(f); see also IAF,
      Tab 26 at 5 (stating that OPM will issue a reconsideration decision on the
      appellant’s alleged overpayment after the instant appeal is resolved).

      The appellant’s new evidence is not material to the dismissal of her appeal.
¶14         On petition for review, the appellant presents a marriage license, dated
      July 23, 1956; her deceased former spouse’s report of military transfer/discharge,
      dated July 4, 1960; a final decree in divorce, dated August 21, 1975; a marriage
      license, dated December 13, 1976; and a divorce decree and permanent order,
      dated October 29, 1981. PFR File, Tab 2 at 9-17.
¶15         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. Veterans Administration, 3 M.S.P.R. 345, 349
      (1980).   The documentation submitted by the appellant is not of such weight
      because it does not pertain to the dismissal of her claims as barred by res judicata
      and for lack of jurisdiction, and thus it is not material. 3 See Arenal v. Office of


      3
        In addition to filing the petition for review, the appellant has filed numerous motions
      for permission to submit additional pleadings. PFR File, Tabs 4, 6, 11, 12, 14, 16, 17.
      The Board’s regulations generally do not provide for p lead ings 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 a response. 5 C.F.R. § 1201.114(a)(5), (k). In her
      motions, the appellant requests to submit additional argument that her petition for
      review was timely filed, PFR File, Tabs 4, 17, requests to assert new or corrected legal
      arguments, PFR File, Tabs 4, 6, 11, 12, 14, 17, and seeks to submit new evidence
      related to the 2014 decision to terminate her survivor annuity, PFR File, Tabs 6, 11, 12,
      14. We deny these motions. The petition for review was filed before the initial
      decision became final, and therefore we agree that it was timely, and we do not find that
      further argument on this issue is necessary. See ID at 4; PFR File, Tabs 1, 2. With
      regard to any new legal arguments concerning OPM’s 2001 reconsideration decision,
      the appellant has not shown that these arguments are either material to the dismissal of
                                                                                             7

      Personnel Management, 106 M.S.P.R. 272, ¶¶ 9-10 (2007) (the Board denied the
      appellant’s petition for review finding that the new evidence was not material and
      the appellant’s attempt to relitigate OPM’s prior reconsideration decision was
      barred by the doctrine of res judicata), aff’d, 264 F. App’x. 891 (Fed. Cir. 2008).
¶16         On petition for review, the appellant requests that she “present all
      arguments and exhibits” from Witherspoon v. Office of Personnel Management,
      MSPB Docket No. DE-0831-14-0564-I-1 (0564). PFR File, Tab 21 at 2. In the
      0564 appeal, the appellant is challenging OPM’s May 29, 1998 reconsideration
      decision issued to her deceased former spouse.              0564 IAF, Tab 1.         The
      administrative judge has not yet issued an initial decision in the 0564 appeal.
¶17         We decline to undertake a review of the record in the 0564 appeal. Before
      the Board will undertake a complete review of the record, the petitioning party
      must explain why the challenged factual determination is incorrect and identify
      the specific evidence in the record which demonstrates the error.            Weaver v.
      Department of the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669 F.2d
      613 (9th Cir. 1982) (per curiam). The appellant’s request does neither.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:




      this claim as barred by res judicata or based on previously unavailab le evidence. See
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board will not
      consider an argument raised for the first time in a petition for review absent a showing
      that it is based on new and material evidence not previously available despite the
      party’s due diligence). Sim ilarly, the proffered evidence related to OPM’s 2014
      termination of the appellant’s survivor annuity is not material to the dism issal of that
      claim for lack of jurisdiction. See id.
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                           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).
         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 a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           9

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.
