NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3187 JACK KLIGMAN, Petitioner,

v. DEPARTMENT OF THE TREASURY, Respondent.

Jack Kligman , of Philadelphia, Pennsylvania, pro se. Joan Stentiford-Swyers , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With her on the brief were Tony West , Assistant Attorney G eneral, Jeanne E. Davidson , Director, and Alan J. Lo Re , Assistant Director. Of counsel on the brief was Robert J. Steeves, Jr. , Associate Chief Counsel, Office of the Chief Counsel, Un ited States Department of the Treasury, of New York, New York. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3187 JACK KLIGMAN, Petitioner,

v. DEPARTMENT OF THE TREASURY, Respondent.

______________________________ DECIDED: October 9, 2009

______________________________ Petition for review of the Merit Syst ems Protection Board in PH0752090251-I-1.

Before MICHEL, Chief Judge , FRIEDMAN, and GAJARSA, Circuit Judges

. PER CURIAM. This is another, and hopefully the last, c hapter in the continui ng attempt by the petitioner Jack Kligman, acting pro se, to overturn the refu sal of the Internal Revenue Service (“IRS”) to hire him for the temporary pos ition of seasonal tax examiner in 1999. In the present case, the Merit Systems Prot ection Board (“Board”) dismissed his latest challenge to the IRS’ action for lack of juri sdiction because, applying collateral estoppel, it held that in its prior proceedings the Board had determi ned all the issues he now raises. We affirm.
IThe facts are somewhat complex, but largely undisputed. A. In 1985, Kligman was convicted on his guilty plea of the federal felonies of conspiracy and mail fraud. He was presidenti ally pardoned for those offenses in 2000. In 1999, before the pardon, K ligman applied for a temporary position as a seasonal tax examiner with the IRS for the 1999–2000 tax season. His application disclosed his felony conviction. He was not selected for the position. In 2001, Kligman asked IRS about his applicat ion. He was told that he had not been selected because of the so-called “rule of three,” an Office of Personnel Management (“OPM”) regulation providing t hat an applicant who has been rejected three times for the same position need not again be considered for it. 5 C.F.R. § 332.405. This regulation covers IRS se asonal tax examiner appointments. See 5 U.S.C. §§ 1103–04; 1301–02. Kligman contends that the IRS’ “rule of three” explanat ion for rejecting him was a pretext, and that the agency’s real reason was because he had been a convicted felon when he applied for the position. Kligman asserts that the IRS followed that course because, had it stated the r eal reason for its action, it would have had to conduct an internal procedure known as a “suitability an alysis” which, among other things, requires that the applicant be given notice of the propos ed action, the right to representation, and the opportunity to challenge any adverse fi nding. 5 C.F.R. § 731.402–.404. Kligman provides no facts, however, that support his contention. Kligman further contends that t he “rule of three” is facial ly invalid as a “prohibited personnel practice” because it permits the agency to “deceive or willfully obstruct” him in

2009-3187 2his “right to compete for employment,” in violation of law. 5 U.S.C. § 2302(b)(4). He does not deny that he had thrice appli ed and been rejected for the position. B. Kligman’s first foray into Board proceedings occurred in 2005, when he challenged before that entity IR S’ 1999 action. He took that step after the United States District Court for the Eastern District of Pennsylvania had dismissed without prejudice his lawsuit making the same content ions, because he had not exhausted his administrative remedies. In his initial decision, the Board’s administrative judge di smissed Kligman’s complaint for lack of jurisdiction. The administrative judge stated that “an agency’s failure to hire an applicant, promote an indivi dual, or otherwise sele ct a person for [a] position are ordinarily not ma tters within the jurisdiction of the Board,” and that “the Board generally has no authority to review t he procedures, including the evaluation of qualifications, by which an agency determines whether to hire, promote, or select a person for a position.” He concluded that t he only possible basis for Board jurisdiction must be the Board’s authority to review OPM regulations, 5 U.S.C. § 1204(f)(1)–(2), but that only the Board itself—not an administrative judge in a regional office—may review those regulations. Kligman then requested that the full Boar d review the OPM regulation. The Board rejected Kligman’s arguments. See Kligman v. Office of Personnel Management , 103 M.S.P.R. 614, 618–620 (2006). The Board ruled that IRS’ “implementation” of the rule of three regulation “does not obstruc t all individuals’ right to compete for employment” but “only administe rs how the competition for employment will take place, it does not obstruct the right to compete.” An individual who is not selected under the

2009-3187 3“rule of three” “has competed, albe it unsuccessfully, for the position.” Id. at 618. Because Kligman “has not shown that an OPM regulation on its face or as implemented by the IRS requires the commission of a pr ohibited personnel prac tice[,]” Kligman’s “regulation review is denied.” Id. at 620. More than a year later, Klig man filed in this court a pet ition to review the Board’s decision, which was far beyond the 60-day time limit for su ch appeals under 5 U.S.C. § 7703(b)(1). He dismissed that appeal in December 2007. He then apparently reinstated his district court suit in the East ern District of Pennsylva nia, which that court dismissed because this court ha s exclusive jurisdiction to review Board decisions. The Court of Appeals for the Third Circuit affirm ed that action, describ ing Kligman’s appeal to it as an attempt to “somehow circum vent the structure of federal personnel adjudication-and essentially forum shop.” Kligman v. Internal Revenue Service , 272 Fed. Appx. 166, 169 (3rd Cir. 2008) (unpublished). Kligman tried again in 2008, when he sought from the Pennsylvani a district court permission to file his untimel y appeal from the Board to th is court, on the claim that court employees had misled hi m about in which court his prior appeal should have been filed. The district court denied that relief because it had no power to extend the time for appeal beyond the stat utory limit. Kligman then filed with the Board, in February 2009, t he appeal that is the subject of the present litigat ion. Once again, he chall enged IRS’ 1999 failure to appoint him as a seasonal tax examiner. A diffe rent Board administrative judge dismissed Kligman’s appeal for lack of jurisd iction under the doctrine of collateral estoppel. In her initial decision, the administrative judge conc luded: “The Board lacks jurisdiction in this

2009-3187 4matter because collateral estoppel bars the appellant from relit igating the Board’s jurisdiction over the agency’s failure to sele ct him for a position he sought in 1999.” That initial decision became the Board’s final decision w hen Kligman failed to seek Board review of it within the time specified. In his informal brief, Kligman “request[s] that the Fed. Cir. reverse the Board’s dismissal for lack of jurisdiction, and remand for examination of t he true reason for the IRS’ ‘failure to select,’ or, alternativel y, the Fed. Cir., itself, inquire into the circumstances surrounding the ‘failure to select.’”
III Various legal principles have been develope d to protect courts and litigants from having to relitigate issues t hat have been fully and fairly re solved in prior litigation. These principles inclu de the doctrines of res judicata, la w of the case and the one here involved, collateral estoppel (also called iss ue preclusion). Under it a litigant who has litigated an issue, albeit unsuccessfully, in a full and fair proceeding, is estopped from relitigating the issue in a subsequent proceeding. Cf. Thomas v. Gen. Servs. Admin. , 794 F.2d 661, 664 (Fed. Cir. 1986). The B oard “can apply the doctrine of issue preclusion in the appropriate circumstances.” Id. In its 2006 decision that denied Kligman’s request for regulation review, the Board fully considered but rejected Kligman’s challenges to the IRS’ refusal, under the “rule of three,” to appoint him as a season al tax examiner in 1999. It upheld both the validity of the “rule of thr ee” itself and its 1999 application to Kligman’s employment request. Kligman permitted that Board decision to become final when he (1) filed in this court an untimely appeal from it and (2) then di smissed that appeal. In his informal brief

2009-3187 52009-3187 6 in this case, Kligman admits that “[t]he e ssence of the ‘appeal’ . . . remains unchanged from the earlier ‘appeal’ to the MSPB. The onl y revision is a more accurate description of IRS behavior.” Accordingly, this case involv es “appropriate circumstances” ( Thomas , supra ) for the Board’s application of collat eral estoppel to bar Kligman from relitig ating issues that had been fully, fairly and finally litigated in the pr ior Board proceedings . To the extent that Kligman may be challengi ng the Board’s earlier ruling (made by the administrative judge) that only the full Board and not an administrative jud ge is authorized to review OPM’s “rule of three” regulation, that issue is moot because of the full Board’s subsequent ruling that upheld the regulat ion and its application to Kligman. CONCLUSION The decision of the Board is
AFFIRMED

.