Nathan Colodney v. Department of Health and Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3246
NATHAN COLODNEY,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Nathan Colodney, of Las Vegas, Nevada, pro se.
David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3246
NATHAN COLODNEY,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Petition for review of the Merit Systems Protection Board in
PH3443070499-I-1.
____________________________
DECIDED: October 15, 2008
____________________________
Before LOURIE, RADER, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Nathan Colodney appeals from the final decision of the Merit Systems Protection
Board (the “Board”) dismissing his appeal as barred by collateral estoppel. Colodney v.
Dep’t of Health and Human Servs., PH-3443-07-0499-I-1 (M.S.P.B. Mar. 17, 2008).
Because Colodney has not demonstrated that the Board’s decision was unsupported by
substantial evidence or that the Board abused its discretion or otherwise committed
legal error in its decision, we affirm.

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BACKGROUND
Colodney was appointed to the Senior Executive Service (“SES”) position of
Director, Office of Health Insurance Portability and Accounting Act Standards, in
Baltimore, Maryland, on October 17, 2004. His appointment to a career SES position
would have become final after a one-year probationary period. See 5 U.S.C. § 3393(d)
(2000). Based on staff complaints of inappropriate comments, Colodney received an
official notice on December 22, 2004, of his removal from the SES position. After
placement in a different position and subsequent resignation, Colodney filed an equal
employment opportunity complaint with the Department of Health and Human Services
(the “Agency”). The Agency found no discrimination and no intolerable work conditions
that forced his resignation. Colodney then appealed to the Board regarding both his
removal from the SES position and his resignation from his subsequent position. On
April 4, 2006, the administrative judge (“AJ”) assigned to the case determined that the
Board did not have jurisdiction over the removal of an SES appointee during the one-
year probationary period, nor did the Board have jurisdiction over the issues
surrounding Colodney’s alleged later involuntary resignation. On August 15, 2006, the
Board denied Colodney’s petition to review. Colodney appealed to this court, which
affirmed the Board’s decision to dismiss his appeal for lack of jurisdiction. Colodney v.
Merit Sys. Prot. Bd., No. 2007-3013 (Fed. Cir. July 17, 2007).
On July 7, 2007, Colodney filed the current appeal to the Board, again
challenging his removal from the SES position. Because Colodney had already
received decisions from the Board and this court, the AJ assigned to this appeal issued
an order to show cause regarding jurisdiction and timeliness. In response to the order,
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Colodney argued that the prior appeal concerned removal under 5 C.F.R. § 359.402,
which he asserted only applied to post-appointment performance and did not provide for
appeal rights. In contrast, he asserted that this appeal concerned a violation of 5 C.F.R.
§ 359.404 because the notice of removal stated that he did not meet the Executive Core
Qualifications (ECQs) required for an SES appointment, which he argued made it a
removal for conditions arising before his appointment. Colodney argued that since he
was actually removed for pre-appointment reasons, he was entitled to Board appeal
rights under 5 C.F.R. § 359.404(a)(2). He also stated that he had filed the new appeal
within four days of discovering 5 C.F.R. § 359.404(a)(2).
On November 1, 2007, the AJ found that Colodney’s appeal was barred by the
doctrine of collateral estoppel. The AJ acknowledged in a footnote that the order to
show cause relied on res judicata, rather than collateral estoppel, but the AJ reasoned
that the appellant “fully grasped” the concern over relitigation of the same issue. The AJ
went on to find that the issue of the Board’s jurisdiction over Colodney’s probationary
removal was identical to that in the previous appeal, in which he fully represented
himself, and that the issue was actually litigated and necessary to the jurisdictional
decisions previously reached. Furthermore, the AJ stated that even if Colodney were
not estopped, the AJ would not find that the recent discovery of a regulatory provision
months after removal constituted good cause for Colodney’s untimely filing.
Colodney filed a petition for review of the AJ’s initial decision. On March 17,
2008, the Board affirmed and thus rendered the AJ’s initial decision final. Colodney
timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
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The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(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. § 7703(c) (2000). This court reviews whether the board
has jurisdiction over an appeal de novo. Torain v. United States Postal Serv., 83 F.3d
1420, 1422 (Fed. Cir. 1996). Colodney has the burden of proving by a preponderance
of evidence that the Board has jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2).
In this case, Colodney and the Agency dispute whether the doctrine of collateral
estoppel bars Colodney’s appeal.
Colodney argues that the AJ erred by applying the law of collateral estoppel
because the order to show cause directed Colodney to address res judicata instead.
He then asserts that he is not estopped to appeal because the prior appeal concerned
his appeal rights under 5 C.F.R. § 359.402, which addresses unacceptable
performance. Instead, Colodney argues, as he did before the AJ, that the notice of
removal indicated that he failed to meet the ECQs for the SES position, which he
asserts are pre-appointment reasons. Colodney argues that the applicable statute for
removal for pre-appointment reasons is 5 C.F.R. § 359.404, which he claims provides
him with the right to an appeal to the Board. Accordingly, the fact that the Agency did
not inform him of a right to appeal in its notice of removal is, in Colodney’s view, good
cause for his untimely filing.
The Agency responds that the Board correctly determined that Colodney’s
arguments regarding his removal were previously litigated. Pointing out that this appeal
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concerns the same facts as the prior appeal, the Agency argues that this court has
already determined that Colodney was removed for staff complaints of inappropriate
comments, not for any pre-appointment issues, and thus Colodney had no right to
appeal to the Board. In the alternative, the Agency argues that even if Colodney’s
removal fell under 5 C.F.R. § 359.404, he was not prejudiced by any alleged failure of
the Agency to notify him of his appeal rights because he did file a timely appeal in
January 2006.
We agree with the Agency that the Board’s decision was supported by
substantial evidence and should be affirmed. The criteria for application of collateral
estoppel are four-fold: “(i) the issue previously adjudicated is identical with that now
presented, (ii) that issue was ‘actually litigated’ in the prior case, (iii) the previous
determination of that issue was necessary to the end-decision then made, and (iv) the
party precluded was fully represented in the prior action.” Kroeger v. United States
Postal Serv., 865 F.2d 235, 239 (Fed. Cir. 1988). It is clear that Colodney is attempting
to relitigate the identical issue decided in his first appeal, viz., whether the Board had
jurisdiction regarding Colodney’s removal during his year-long probationary period. All
decisions concerning this issue, starting from the notice letter of his removal to the first
AJ’s decision, to the full Board’s affirmance and this court’s prior opinion, found that
Colodney was removed for post-appointment, performance-based reasons and thus the
Board lacked jurisdiction to hear his appeal. See 5 C.F.R. §§ 359.402, 359.407 (2008).
Accordingly, the AJ’s decision in the present appeal correctly applied the four-part test
for collateral estoppel in finding that Colodney was barred from pursuing a second
appeal on the identical issue under a different regulatory provision. See Kroeger, 865
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F.2d at 239. The fact that the order to show cause cited res judicata rather than
collateral estoppel does not transform the AJ’s correct application of the law of collateral
estoppel in his decision into legal error. Finally, the AJ did not commit an abuse of
discretion in stating that if Colodney were not estopped, recent discovery of a regulatory
provision would not excuse his untimely filing many months after his removal.
Thus the Board’s decision was supported by substantial evidence, and the Board
did not abuse its discretion or otherwise commit legal error in dismissing Colodney’s
appeal as barred by the doctrine of collateral estoppel. Accordingly, we affirm the
Board’s decision.
COSTS
No costs.

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