NOTE: This disposition is nonprecedential.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
 NOTE: This disposition is nonprecedential.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. 
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 oneyear 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.