Linda A. Cowan v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3278
LINDA A. COWAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Linda A. Cowan, of Buffalo, New York, pro se.
Russell A. Shultis, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Bryant G. Snee, Assistant Director.
Appealed from: Merit Systems Protection Board

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NOTE: This opinion is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3278
LINDA A. COWAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in NY831E080006-I-1.
___________________________
DECIDED: May 21, 2009
___________________________
Before RADER, FRIEDMAN, and BRYSON, Circuit Judges.
PER CURIAM.
Petitioner Linda A. Cowan (“Ms. Cowan”) appeals the June 5, 2008, final order of
the Merit Systems Protection Board (“MSPB” or “Board”) denying her petition for
reconsideration of the Board’s December 27, 2007, initial decision. The administrative
judge dismissed Ms. Cowan’s appeal from the Office of Personnel Management
(“OPM”) for lack of jurisdiction due to res judicata. Because the Board correctly
concluded that res judicata barred it from considering this case and that no new,
previously unavailable evidence was presented, this court affirms.
I.

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This is Ms. Cowan’s third appeal from the MSPB to this court regarding her
employment with the Internal Revenue Service (“IRS”). See Cowan v. Merit Sys. Prot.
Bd., 157 Fed. Appx. 314 (Fed. Cir. 2005) (dismissing untimely appeal challenging Ms.
Cowan’s dismissal from the IRS) (“Cowan II”); Cowan v. Office of Pers. Mgmt., 15 Fed.
Appx. 802 (Fed. Cir. 2001) (affirming OPM’s denial of Ms. Cowan’s application for
disability retirement benefits under the Civil Service Retirement System (“CSRS”))
(“Cowan I”).
Ms. Cowan also unsuccessfully pursued two Title VII actions in federal district
court. See Cowan v. Bush, No. 07-CV-136S, 2007 WL 965340 (W.D.N.Y. March 30,
2007) (dismissing Ms. Cowan’s pro se action against the President of the United States
under the “No Fear Act” of 2002 alleging that the presiding judge “illegally dumped” (i.e.,
dismissed) her prior employment discrimination case against the IRS and that the
President should be “made aware” of this and “held accountable”); Cowan v. O’Neill,
No. 00-CV-315S, 2005 WL 1770873 (W.D.N.Y. July 27, 2005) (denying Ms. Cowan’s
motions to reopen her case alleging sexual harassment in violation of Title VII of the
Civil Rights Act of 1964 and to recuse the presiding judge from the case).
Ms. Cowan was employed by the IRS as a Taxpayer Service Representative in
Buffalo, New York. During her service for the IRS, Ms. Cowan received several
performance awards. In October 1996, Ms. Cowan had a disagreement with her new
supervisor regarding a proposed reorganization of the office. From that time, her
relationship with her supervisor deteriorated to the point where she ceased attending
work on or about January 6, 1997. In March 2000, the IRS removed Ms. Cowan from
federal service due to her inability to maintain her position.
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On April 30, 1998, Ms. Cowan filed an application for disability retirement
benefits under the CSRS with OPM, claiming that she was unable to perform her duties
due to mental stress and anguish caused by her supervisor. In its initial decision, OPM
denied Ms. Cowan’s claim on September 21, 1998, for failure to present medical
evidence supporting her claim. On December 1, 1999, OPM issued its final decision
denying Ms. Cowan’s request for reconsideration of OPM’s initial decision when no new
evidence was presented to support her claim. Ms. Cowan appealed OPM’s final
decision to the Board.
The Board affirmed OPM on May 30, 2000, with an initial decision finding Ms.
Cowan failed to show that she was entitled to disability retirement benefits. In its
decision, the Board considered Ms. Cowan’s argument that she was not offered another
position despite her repeated requests. The Board found that Ms. Cowan declined the
IRS’s offer of reassignment to the nearby Appletree Mall location and that the record
evidence did not support Ms. Cowan’s assertion that her condition would worsen if she
returned to work under her current supervisor. The Board also considered Ms. Cowan’s
criticism of OPM’s medical consultant, Dr. Bradley, because he did not confer with her
and was not cross-examined. It found that regardless of the weight given to Dr.
Bradley’s evaluation, Ms. Cowan failed to carry her burden of establishing a disability.
On December 1, 2000, the full Board issued its final order denying Ms. Cowan’s petition
for reconsideration. This court affirmed the full Board in Cowan I.
On October 1, 2007, Ms. Cowan filed a second appeal to the MSPB regarding
OPM’s denial of her request for retirement disability benefits. On October 9, 2007, the
Board issued a Show Cause Order directing Ms. Cowan to produce a new OPM final
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decision over which it had jurisdiction to consider her appeal. After Ms. Cowan failed to
produce such a decision, the Board issued an initial decision on December 27, 2007,
dismissing the appeal under res judicata based on the Board’s December 4, 2000, final
order and this court’s affirmance in Cowan I. On June 5, 2008, the full Board issued a
final order that affirmed its initial decision.
Ms. Cowan now appeals the full Board’s June 5, 2008, final decision.
II.
This court may set aside a decision of the Board only when it is: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7003(c). Further, res judicata applies
where: “(1) the prior decision was rendered by a forum with competent jurisdiction; (2)
the prior decision was a final decision on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases.” Carson v. Dep’t of
Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005) (citation omitted).
Ms. Cowan argues: (1) that the IRS refused to transfer her to a suitable position
in the Buffalo District Office, even though three positions were available there; and (2)
that the Board failed to properly consider her psychiatrist’s, Dr. Wolin’s, evaluation of
her and that she was never seen by an IRS physician. As discussed, these issues were
considered on the merits and finally decided by the full Board on December 1, 2000,
and June 5, 2008, and affirmed by this court in Cowan I.
Ms. Cowan submits with her informal brief a one page letter from Dr. Wolin,
dated June 6, 2008, that describes his evaluation of her condition. The letter reiterates
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2008-3278 5
Dr. Wolin’s description of Ms. Cowan’s condition that he provided the Board and that the
Board already considered. As such, this court cannot review the factual underpinnings
of OPM disability determinations. Lindahl v. OPM, 470 U.S. 768, 791 (1985). This
court may only review such determinations for whether “there has been a substantial
departure from important procedural rights, a misconstruction of the governing
legislation, or some like error ‘going to the heart of the administrative process.’” Id.
(quoting Scroggins v. United States, 397 F.2d 295, 297 (1968)).
Accordingly, because Ms. Cowan presents the same causes of action that were
finally decided on the merits by the Board and this court involving the same parties, this
court finds the Board did not err by dismissing this case on the grounds of res judicata.
CONCLUSION
The final decision of the Merit Systems Protection Board is
AFFIRMED.

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