Case: 21-2245 Document: 19 Page: 1 Filed: 01/20/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACQUELINE BROWN,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2021-2245
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-21-0350-W-1.
______________________
Decided: January 20, 2022
______________________
JACQUELINE BROWN, Cibolo, TX, pro se.
SONIA W. MURPHY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN JOHN GILLINGHAM, MARTIN F. HOCKEY,
JR.
______________________
Before LOURIE, CHEN, and CUNNINGHAM, Circuit Judges.
Case: 21-2245 Document: 19 Page: 2 Filed: 01/20/2022
2 BROWN v. AIR FORCE
PER CURIAM.
Jacqueline Brown appeals the decision of the Merit
Systems Protection Board (Board) dismissing her individ-
ual right of action as precluded by the doctrine of res judi-
cata, or, in the alternative, the doctrine of collateral
estoppel. Brown v. Dep’t of the Air Force, No. SF-1221-21-
0350-W-1,
2021 WL 3601837 (M.S.P.B. Aug. 9, 2021)
(Board Decision) (Appx. 1–17). 1 Because the Board cor-
rectly applied the doctrine of res judicata, we affirm on that
ground.
BACKGROUND
A
On April 2, 2018, the Air Force appointed Ms. Brown
to supply technician position GS-2005-5 for the 9th Physio-
logical Support Squadron (9PSPTS) in Yuba, California.
Board Decision at 5. This appointment was subject to a
two-year probationary period so the Air Force could assess
Ms. Brown’s fitness for the position. Id.;
5 C.F.R.
§ 315.803(a). During that probationary period, Ms. Brown
received a notice of termination. Board Decision at 5. The
notice informed Ms. Brown that she would be terminated
effective February 19, 2019 because she “failed to perform”
certain duties and her supervisor “received complaints” re-
garding her lack of civility and refusal to perform certain
work. Id. at 6.
On February 15, 2019, Ms. Brown met with Com-
mander Lieutenant Colonel Steven Dawson. Id. During
1 “Appx.” citations are to the appendix filed concur-
rently with the government’s responsive brief. Addition-
ally, because the reported versions of the Board’s decision
are not paginated, citations are to version of the Board de-
cision included in the appendix. E.g., Board Decision at 5
can be found at Appx. 5.
Case: 21-2245 Document: 19 Page: 3 Filed: 01/20/2022
BROWN v. AIR FORCE 3
that meeting, Ms. Brown stated that she declined work to
comply with certain Air Force regulations. Id.; Appellant’s
Br. 2–3. Commander Dawson and, separately, Logistics
Flight Chief Master Sergeant Charles Myers informed Ms.
Brown that the regulations she cited did not apply to her
position. Board Decision at 7. Commander Dawson subse-
quently concurred with the decision to terminate Ms.
Brown, which became effective on February 19, 2019. Id.
B
Ms. Brown’s termination has given rise to three pro-
ceedings. In Brown v. Department of the Air Force (Brown-
1), No. SF-315H-19-0249-I-1,
2019 WL 1437643 (M.S.P.B.
Mar. 26, 2019), the Board dismissed Ms. Brown’s claim for
lack of jurisdiction based on failure to exhaust administra-
tive remedies. In Brown v. Department of the Air Force
(Brown-2), No. SF-1221-19-0481-W-1,
2020 WL 1508129
(M.S.P.B. Mar. 24, 2020), Ms. Brown cured that jurisdic-
tional deficiency and added a new allegation that her ter-
mination was retaliatory for protected whistleblower
disclosures pursuant to
5 U.S.C. § 2302(b)(8). The Board
concluded that Ms. Brown “failed to meet her burden of
proving by preponderant evidence that she engaged in
whistleblowing activities” because she failed to demon-
strate that her alleged disclosures were protected.
Id. This
court affirmed the Board’s decision. Brown v. Dep’t of the
Air Force, 846 F. App’x 886, 889 (Fed. Cir. 2021).
Following our affirmance of Brown-2, Ms. Brown filed
a new complaint with the Office of Special Counsel (OSC).
OSC determined that the matters raised in Ms. Brown’s
complaint had already been addressed in Brown-2. Board
Decision at 12. Ms. Brown then filed her third individual
right of action before the Board, where she again argued
that she was terminated in retaliation for the same alleg-
edly protected disclosures. Id. at 1. The Board concluded
that the doctrine of res judicata, or, in the alternative, the
doctrine of collateral estoppel, precluded Ms. Brown’s third
Case: 21-2245 Document: 19 Page: 4 Filed: 01/20/2022
4 BROWN v. AIR FORCE
action. Id. at 13–17. Ms. Brown appeals, challenging the
Board’s determination on the merits in Brown-2. Appel-
lant’s Br. 2–4. Ms. Brown also argues that the Board im-
properly applied res judicata because she “has not
exhausted all avenues of her judicial rights” and because
she believes the Board declined to consider all the evidence.
Id. at 4.
We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)
and
28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board properly dismissed an action based
on res judicata raises a question of law that we review de
novo. Phillips/May Corp. v. United States,
524 F.3d 1264,
1267 (Fed. Cir. 2008). The doctrine of res judicata applies
when “(1) the prior decision was rendered by a forum with
competent jurisdiction; (2) the prior decision was a final de-
cision 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). The Board concluded that all three ele-
ments of res judicata were met. We agree.
In Brown-2, the Board had jurisdiction over, and re-
jected, Ms. Brown’s whistleblower retaliation claims pur-
suant to
5 U.S.C. § 1221. The Board’s decision on the
merits became final on April 28, 2020. Brown-2. This court
affirmed the Board’s decision, and the mandate issued on
April 5, 2021. Brown, 846 F. App’x at 889. Ms. Brown did
not file a petition for rehearing or a petition for writ of cer-
tiorari. Accordingly, the first two elements of res judicata
are satisfied.
With respect to the third element, it is undisputed that
Ms. Brown is the petitioner and the Air Force is the re-
spondent in Brown-2 and in this action. Both actions also
involve the same claim of whistleblower retaliation based
on the same disclosures made during the same course of
Case: 21-2245 Document: 19 Page: 5 Filed: 01/20/2022
BROWN v. AIR FORCE 5
events. Compare Brown-2, with Board Decision at 8–13.
The only identifiable difference between Ms. Brown’s claim
in Brown-2 and Ms. Brown’s claim here is that Ms. Brown
now states that she met with Commander Dawson on Jan-
uary 30, 2019. Board Decision at 14. In Brown-2, Ms.
Brown represented she was out sick that day.
Id. The
Board expressly considered this difference and concluded
that it “[did] not create a new cause of action.”
Id. We
agree.
To the extent Ms. Brown raises new challenges to the
Board’s fact findings and legal conclusions, Ms. Brown
could have made those arguments in Brown-2. Any such
arguments are therefore also precluded by res judicata.
Carson,
398 F.3d at 1375 n.8 (“[C]laim preclusion fore-
closes matters that, although never litigated or even
raised, could have been advanced in an earlier suit.”) (cit-
ing Migra v. Warren City Sch. Dist. Bd. of Ed.,
465 U.S. 75,
77 n.1 (1984)).
CONCLUSION
We have considered appellant’s remaining arguments
and do not find them persuasive. For the foregoing rea-
sons, we affirm the decision of the Board.
AFFIRMED
