Slocum v. United States Postal Service ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CALVIN SLOCUM,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2015-3097
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-07-0157-C-2.
______________________
Decided: November 10, 2015
______________________
CALVIN SLOCUM, Decatur, AL, pro se.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M HOSFORD.
______________________
Before DYK, MOORE, and STOLL, Circuit Judges.
2 SLOCUM v. USPS
PER CURIAM.
Mr. Slocum appeals a final decision of the Merit Sys-
tems Protection Board denying his petition for enforce-
ment of a June 6, 2008 order. Because the Board properly
denied Mr. Slocum’s petition under the doctrine of res
judicata, we affirm.
BACKGROUND
The United States Postal Service employed Mr. Slo-
cum, a preference-eligible veteran, as a Mail Handler in
Huntsville, Alabama. In 2006, Mr. Slocum began an
extended absence from his job for medical reasons. On
October 4, 2006, the USPS placed Mr. Slocum on emer-
gency placement in a non-duty, non-pay status. Then, in
March 2007, the USPS placed Mr. Slocum on permanent
leave without pay. He returned to work in May 2009.
While on leave, Mr. Slocum filed an appeal at the
Board challenging his October 4, 2006 emergency place-
ment. In a 2008 order, the Board directed the USPS to
cancel Mr. Slocum’s placement on non-duty status and to
“restore [Mr. Slocum] effective October 4, 2006.” J.A. 69.
The Board also ordered the USPS to issue Mr. Slocum
back pay, including interest and benefits. And the Board
informed Mr. Slocum that he might be entitled to reason-
able attorney’s fees and costs. Three months later,
Mr. Slocum, acting under the advice of counsel, signed a
settlement agreement: Mr. Slocum “agree[d] to fully and
finally settle all claims by Appellant of any nature against
the United States Postal Service” in return for three
months’ back pay and $6,800 in attorney’s fees. J.A. 71.
After receiving a check from the USPS for three
months’ back pay, Mr. Slocum filed his first petition for
enforcement challenging the calculation of his pay. The
Administrative Judge denied Mr. Slocum’s petition be-
cause the USPS had properly calculated the three months’
SLOCUM v. USPS 3
back pay. The Board subsequently denied Mr. Slocum’s
petition for review of the AJ’s decision.
Mr. Slocum then filed a second petition challenging
the USPS’s compliance with the 2008 order to restore him
effective October 4, 2006. Mr. Slocum acknowledged that
he had received the three months’ back pay stipulated in
the settlement agreement, but he asserted that the USPS
wrongly denied him back pay from January 21, 2007, to
May 25, 2009 (the date he returned to employment).
Mr. Slocum reasoned that, because the 2008 order “com-
manded the USPS to restore the appellant to duty effec-
tive October 4, 2006,” he was due back pay for the period
until he returned to full employment in 2009. J.A. 98–99.
The AJ denied Mr. Slocum’s petition under the doc-
trine of res judicata. The AJ held that Mr. Slocum’s first
petition to enforce the settlement agreement barred his
second petition for enforcement of the 2008 order. The AJ
explained that the 2008 order had been “subsumed by the
terms of the settlement agreement.” J.A. 23. Thus, when
the first petition challenged the USPS’s compliance with
the settlement agreement, it also challenged the USPS’s
compliance with the 2008 order. As a result, the AJ held
that Mr. Slocum’s second petition challenging the USPS’s
compliance with the 2008 order was barred under res
judicata.
Mr. Slocum petitioned the Board to review the AJ’s
dismissal. The Board affirmed, reasoning that
Mr. Slocum “could have raised the issue of whether the
[USPS] erred in limiting its back pay check to 3 months’
pay in his first petition for enforcement.” Slocum v. U.S.
Postal Serv., No. AT-0752-07-0157-C-2, 2015 WL 110618,
¶ 7 (M.S.P.B. Jan. 8, 2015). The Board thus issued a final
decision dismissing Mr. Slocum’s second petition under
the doctrine of res judicata.
Mr. Slocum appeals the Board’s final decision. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
4 SLOCUM v. USPS
DISCUSSION
We must affirm the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review the Board’s legal
conclusion on res judicata de novo. Phillips/May Corp. v.
United States, 524 F.3d 1264, 1267 (Fed. Cir. 2008).
“Under the doctrine of res judicata (or claim preclu-
sion), ‘[a] final judgment on the merits of an action pre-
cludes the parties or their privies from relitigating issues
that were or could have been raised in that action.’”
Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.
Cir. 2003) (quoting Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981)). Here, the parties are undis-
putedly the same—Mr. Slocum challenged the USPS’s
acts in both the first and second petition. And the first
petition reached a final judgment on the merits after the
Board denied his petition for review. Accordingly, we
need only determine whether Mr. Slocum could have
raised the grounds for the second petition in the first.
We agree with the Board that Mr. Slocum, in his first
petition, could have raised the issues he later presented in
his second petition. In his first petition, Mr. Slocum
challenged the sufficiency of the USPS’s payment of back
pay under the settlement. In his second petition,
Mr. Slocum again challenged the sufficiency of the USPS’s
back pay, but this time he argued that he was due back
pay for an additional time period—January 20, 2007 to
May 25, 2009—as well as the three months the USPS had
already paid. So both petitions relate to whether the
USPS paid the proper amount of back pay under the 2008
order, and therefore both petitions relate to the same set
of transactional facts. Because Mr. Slocum could have
SLOCUM v. USPS 5
challenged the USPS’s compliance with the 2008 order in
his first petition, he cannot bring that same claim in a
second petition under the doctrine of res judicata. See
Phillips/May Corp., 524 F.3d at 1271 (“[T]he general rule
is that claim preclusion applies when ‘the second claim is
based on the same set of transactional facts as the first.’”
(quoting Ammex, 334 F.3d at 1055)). We thus discern no
error in the Board’s denial of Mr. Slocum’s second petition
under the doctrine of res judicata.
CONCLUSION
For the reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.