Linda M. Jwanouskos v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LINDA M. JWANOUSKOS,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2016-1086
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-0127-I-1.
______________________
Decided: March 11, 2016
______________________
L INDA M. J WANOUSKOS , Norwell, MA, pro se.
J EFFREY D. K LINGMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R., BRIAN A.
MIZOGUCHI.
______________________
Before T ARANTO, SCHALL , and CHEN, Circuit Judges.

-- 1 of 5 --

JWANOUSKOS v. DHS 2
P ER CURIAM .
Linda M. Jwanouskos was removed from her position
in the United States Secret Service in 1999. She appealed
the removal to the Merit Systems Protection Board, which
found that her removal was proper, and this court af-
firmed the Board’s decision. In the present appeal, Ms.
Jwanouskos again challenges her removal, and she also
presents a claim for disability retirement involving an
agency of the District of Columbia. The Board rejected
Ms. Jwanouskos’s claims. We affirm.
BACKGROUND
Ms. Jwanouskos was a sergeant in the Uniformed
Division of the Secret Service. In 1997, the Secret Service
suspended her security clearance, and in 1999 the Secret
Service removed her from her position because she did not
meet the security-clearance requirement for the job. On
November 5, 1999, Ms. Jwanouskos appealed to the
Board, challenging her removal. The administrative
judge determined that Ms. Jwanouskos’s position re-
quired a security clearance, she did not have a security
clearance, and her removal was therefore justified. Sev-
eral years later, she petitioned for review by the Board,
which affirmed its initial decision. This court in turn
affirmed the Board’s decision. Jwanouskos v. Dep’t of
Treasury, 246 F. App’x 677, 678 (Fed. Cir. 2007).
On November 3, 2014, Ms. Jwanouskos filed another
appeal to the Board, again challenging her 1999 removal.
She also seemed to ask the Board to resolve a dispute she
had with the District of Columbia Police and Firefighters’
Retirement and Relief Board about whether she could
receive a disability retirement. The administrative judge
determined that Ms. Jwanouskos’s removal claim was
barred by the Board’s previous rejection of that very
claim. The administrative judge did not address the
retirement claim but stated that only the removal claim

-- 2 of 5 --

JWANOUSKOS v. DHS 3
was within the Board’s jurisdiction. Accordingly, the
administrative judge dismissed the appeal.
The Merits Systems Protection Board affirmed. The
Board found that Ms. Jwanouskos’s present removal
claim was barred by collateral estoppel based on the
previous rejection of her prior challenge to the same
removal. The Board added that, to the extent that Ms.
Jwanouskos was newly raising claims of disability dis-
crimination and reprisal for her alleging certain discrimi-
nation claims, the Board is “not permitted to adjudicate
whether an agency’s adverse action, which is premised on
the suspension or revocation of a security clearance,
constitutes impermissible discrimination or reprisal.”
Jwanouskos v. Dep’t of Homeland Sec., No. DC-0752-15-
0127-I-1, 2015 WL 5244398, ¶ 6 n.5 (MSPB Sept. 9, 2015).
The Board also addressed Ms. Jwanouskos’s retirement
claim. It stated that it lacked jurisdiction over any claim
relating to a decision by the District of Columbia Police
and Firefighters’ Retirement and Relief Board. And to
the extent that Ms. Jwanouskos raised a retirement claim
under laws within the Merit Systems Protection Board’s
authority, the Board lacked jurisdiction in this case
because Ms. Jwanouskos did not provide evidence of a
final decision from the Office of Personnel Management, a
prerequisite to Board authority.
Ms. Jwanouskos appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; reached in violation of proce-
dures required by law, rule, or regulation; or unsupported
by substantial evidence. 5 U.S.C. § 7703(c); Addison v.
Dep’t of Health & Human Servs., 945 F.2d 1184, 1186
(Fed. Cir. 1991). We review the Board’s ultimate decision

-- 3 of 5 --

JWANOUSKOS v. DHS 4
regarding jurisdiction de novo. Bolton v. MSPB, 154 F.3d
1313, 1316 (Fed. Cir. 1998).
Ms. Jwanouskos challenges the Board’s refusal to re-
consider her 1999 removal. But the Board rejected her
earlier challenge to that removal, and we affirmed that
rejection. Ms. Jwanouskos now has identified no ground
for challenging the removal that she did not present in
the earlier challenge; and, in particular, she has identified
no new ground that could make any legal difference in the
upholding of the removal based on her loss of her security
clearance. For that reason, the Board correctly held here
that Ms. Jwanouskos’s removal challenge was barred by
collateral estoppel based on the earlier rejection. See
Kroeger v. USPS, 865 F.2d 235, 239 (Fed. Cir. 1988).
That conclusion is not altered by Ms. Jwanouskos’s
reference before the Board to discrimination on the basis
of disability and retaliation for earlier discrimination
charges. Ms. Jwanouskos does not present such conten-
tions in this court. In any event, we see no error in the
Board’s determination that such contentions supply no
basis for overturning the removal based on loss of a job-
required security clearance. Under Department of Navy v.
Egan, 484 U.S. 518 (1988), when a removal is based on
loss of a security clearance, the Board’s inquiry is very
narrow, and it does not include inquiring the motivation
of the Secret Service for suspending her security clear-
ance. See Biggers v. Dep’t of Navy, 745 F.3d 1360, 1362
(Fed. Cir. 2014).
Ms. Jwanouskos also challenges the Board’s holding
that it could not consider her claims regarding disability
retirement. We see no error in the Board’s ruling.
To the extent that Ms. Jwanouskos’s retirement claim
arises under the federal retirement laws within the
Board’s jurisdiction, 5 U.S.C. § 8331 et seq., she has not
satisfied a prerequisite for the Board to exercise its juris-
diction. The Office of Personnel Management administers

-- 4 of 5 --

JWANOUSKOS v. DHS 5
those laws, see id. §§ 8347(a), 8461(b)–(d); 5 C.F.R.
§ 831.101, and as relevant here, “an administrative action
or order” of OPM “affecting the rights or interests of an
individual” is a precondition to the individual’s bringing a
claim to the Board. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1);
5 C.F.R. §§ 831.110, 1201.3(a)(2). There is no evidence
that OPM issued an action or order on a federal retire-
ment claim by Ms. Jwanouskos. And we are aware of no
statutory authority for the Board to review a challenge to
a decision by the District of Columbia Police and Fire-
fighters’ Retirement and Relief Board under D.C. law.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
No costs.
AFFIRMED

-- 5 of 5 --