MacHulas v. Merit Systems Protection Board , 492 F. App'x 102 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LEONARD P. MACHULAS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3081
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH3443110342-I-1.
__________________________
LEONARD P. MACHULAS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3082
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH1221110241-W-1.
MACHULAS v. MSPB 2
____________________________
Decided: August 9, 2012
____________________________
LEONARD P. MACHULAS, of Bloomingdale, Georgia, pro
se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before RADER, Chief Judge, NEWMAN and LOURIE, Circuit
Judges.
PER CURIAM.
Leonard P. Machulas appeals pro se from two final
decisions of the Merit Systems Protection Board (the
“Board”) regarding actions taken by the Department of
the Air Force (the “Air Force”): (1) dismissing his first
appeal regarding mishandling of unemployment compen-
sation documents for lack of jurisdiction, Machulas v.
Dep’t of the Air Force, No. PH-3443-11-0342-I-1 (M.S.P.B.
Jan. 23, 2012); and (2) dismissing his second appeal
regarding withheld severance pay as barred by collateral
estoppel, Machulas v. Dep’t of the Air Force, No. PH-1221-
11-0241-W-1 (M.S.P.B. Jan. 25, 2012). Because the Board
correctly dismissed both appeals, we affirm.
BACKGROUND
Machulas was formerly employed as an Aircraft Me-
chanic Foreman by the Air Force at McGuire Air Force
Base in New Jersey. Machulas has filed a number of
3 MACHULAS v. MSPB
appeals from the Board to this court over the years.
Machulas v. Dep’t of the Air Force, 463 F. App’x 908 (Fed.
Cir. 2011); Machulas v. Dep’t of the Air Force, 407 F.
App’x 465 (Fed. Cir. 2011); Machulas v. Dep’t of the Air
Force, 343 F. App’x 601 (Fed. Cir. 2009); Machulas v.
Merit Sys. Prot. Bd., 185 F.3d 885 (Fed. Cir. 1999); Ma-
chulas v. Merit Sys. Prot. Bd., 155 F.3d 571 (Fed. Cir.
1998); Machulas v. Dep’t of the Air Force, 101 F.3d 716(Fed. Cir. 1996). These previously filed cases generally
dealt with the circumstances revolving around Machulas’s
temporary promotion to a supervisory role, subsequent
transfer to a nonsupervisory position, and later retire-
ment. As we have previously summarized:
Mr. Machulas worked as an Aircraft Mechanic
Foreman at McGuire Air Force base in New Jer-
sey. His position was classified as Air Reserve
Technician (“ART”), a civilian job that is filled by
a member of the active reserves. Although the
ART position was a WS–08 level position, for a
brief period of time Mr. Machulas was detailed to
a WS–11 supervisory position. During that period,
he competed for a permanent WS–11 position but
was unsuccessful. Afterward, he was reassigned to
a non-ART Aircraft Mechanic Foreman position
because, according to the Air Force, the position of
ART Aircraft Mechanic Foreman was abolished as
part of a base reorganization. Shortly thereafter,
on September 3, 1994, Mr. Machulas retired.
463 F. App’x at 909; accord 407 F. App’x at 465–66.
In his first recent appeal, Machulas alleged that the
Air Force retaliated against him by sending his docu-
ments concerning unemployment compensation to the
wrong office in Alaska, delaying his receipt of benefits.
Based on these facts, he claimed retaliation, disparate
MACHULAS v. MSPB 4
treatment, harmful procedural error, discrimination,
whistleblower reprisal, violations of his rights under the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), violations of his rights
under the Veterans Employment Opportunities Act of
1998 (“VEOA”), denial of restoration, and involuntary
retirement.
The administrative judge (“AJ”) issued an Order to
Show Cause, directing Machulas to submit evidence and
argument establishing jurisdiction over his appeal by a
preponderance of evidence. In response, Machulas reiter-
ated his claims pertaining to the unemployment docu-
ments and accused the agency of 28 unspecified acts of
reprisal for whistleblowing and age discrimination for
replacing him with a younger employee. Machulas also
alleged that the agency deceived him into retiring early
by offering $25,000 severance pay that was never paid.
After reviewing the submission, the AJ dismissed the
appeal for lack of jurisdiction, finding that Machulas had
not addressed the limited nature of the Board’s jurisdic-
tion and had failed to make nonfrivolous allegations of
jurisdiction. Machulas filed a petition for review, which
the Board denied, finding that it lacked jurisdiction over
Machulas’s allegations.
Machulas’s second appeal again alleges that the Air
Force had agreed to pay him $25,000 in severance pay
when he retired in 1994 and that he never received it,
tricking him into retiring early either as a reprisal for
whistleblowing or as an involuntary retirement. He also
filed copies of correspondence with the Office of Special
Counsel (“OSC”) regarding that severance pay in support
of his claim. The AJ determined that Machulas’s appeal
was barred by collateral estoppel because the OSC com-
plaint was the same complaint involving the same
$25,000 severance pay that was subject to a previous
5 MACHULAS v. MSPB
appeal to the Board regarding whistleblowing retaliation
that was dismissed for lack of jurisdiction in 2008. See
Machulas v. Dep’t of the Air Force, No. PH-1221-08-0371-
W-1 (MSPB Sept. 11, 2008). The AJ also found that to the
extent the appeal was not a claim for retaliation for
whistleblowing, but instead for involuntary retirement,
that claim was also barred by collateral estoppel based on
a prior appeal raising the same issue, and it dismissed for
lack of jurisdiction. See Machulas v. Dep’t of the Air
Force, No. PH-0752-96-0296-I-1 (MSPB Sept. 19, 1996).
Machulas filed a petition for review, which the Board
denied for the same reasons as the AJ.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). The scope
of the Board’s jurisdiction is a question of law, which we
review de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008).
Machulas alleges in his first appeal that the Air
Force’s misrouting of his unemployment compensation
documents violated a number of statutes and regulations.
But the Board does not have independent jurisdiction over
the handling of unemployment compensation documenta-
tion or the related reprisal, discrimination, and disparate
treatment claims under 5 U.S.C. § 2302(b). See 5 U.S.C.
§ 7512; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245–46
(Fed. Cir. 1991). For the same reason, the Board also
MACHULAS v. MSPB 6
does not have jurisdiction over Machulas’s claims of
procedural error. Cruz, 934 F.2d at 1246.
With regard to the whistleblower reprisal claim under
5 U.S.C. § 1221 in the first appeal, the AJ properly ad-
vised him that he was required to both exhaust his ad-
ministrative remedies at the Office of Special Counsel and
make nonfrivolous allegations that he engaged in whis-
tleblowing by making a protected disclosure, and that the
disclosure was a contributing factor in the decision by the
Air Force to take or fail to take a covered personnel ac-
tion. See Yunus v. Dep’t of Veterans Affairs, 242 F.3d
1367, 1371 (Fed. Cir. 2001). He failed to do so; instead, he
only offered conclusory assertions, which alone do not
constitute a nonfrivolous allegation of whistleblower
reprisal. Machulas’s restoration claim under 5 C.F.R.
§ 353.304 similarly fails to allege a basis for jurisdiction
in that he has not alleged a compensable injury or even
that he requested restoration from the Air Force. See
Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097, 1104 (Fed.
Cir. 2011) (listing the elements for jurisdiction over a
restoration claim).
Machulas’s USERRA and VEOA claims also fail to
make nonfrivolous allegations of jurisdiction. Machulus’s
USERRA claim is based on actions prior to the enactment
of USERRA. The Board may only consider USERRA
claims that arose prior to the enactment of USERRA if
they were also prohibited before 1994. See Fernandez v.
Dep’t of the Army, 234 F.3d 553, 555–57 (Fed. Cir. 2000).
The statute that preceded USERRA was the Veterans’
Reemployment Rights Act of 1974 that prohibited dis-
crimination solely on the basis of any obligation a person
might have had as a member of a Reserve component of
the Armed Forces. 38 U.S.C. § 2021(b)(3) (1988). The
Board was correct to conclude, however, that Machulas
failed to allege any facts to show that he was denied any
7 MACHULAS v. MSPB
benefit of employment because of an obligation as reserv-
ist. Similarly, he also did not allege any basis for finding
that the Air Force violated any provision relating to his
veterans’ preference dated after the enactment of the
VEOA in 1998. See 5 U.S.C. § 3330a; Lapuh v. Merit Sys.
Prot. Bd., 284 F.3d 1277, 1281–82 (Fed. Cir. 2002)
Machulas’s claim in his second whistleblowing re-
taliation appeal with regard to the $25,000 severance pay
is barred by collateral estoppel. Collateral estoppel
applies when “(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. U.S. Postal
Serv., 865 F.2d 235, 239 (Fed. Cir. 1988) (quoting Thomas
v. Gen. Servs. Admin,, 794 F.2d 661, 664 (Fed. Cir. 1986)).
Machulas’s claim is based on the same jurisdictional
issues as the prior appeal. See, e.g., Machulas v. Dep’t of
the Air Force, No. PH-1221-08-0371-W-1 (M.S.P.B. Jun.
30, 2008) (whistleblowing claim based on severance pay
and forced retirement). Specifically, that 2008 appeal was
dismissed for lack of a nonfrivolous allegation of jurisdic-
tion over his whistleblowing retaliation claim based on
the same complaint to OSC regarding the same severance
pay. Id. That jurisdictional defect has not been cured.
Thus the Board properly held that Machulas was collat-
erally estopped from relitigating jurisdiction over his
claim that he was denied severance pay as a result of
whistleblowing.
Finally, Machulas’s involuntary retirement claims
from both appeals are barred by both collateral estoppel
and res judicata. Machulas’s involuntary retirement
claim was previously decided on the merits over 16 years
ago, determining that Machulas had voluntarily retired.
MACHULAS v. MSPB 8
See Machulas v. Dep’t of the Air Force, No. PH-0752-0296-
I-1 (MSPB Sept. 19, 1996). Machulas is therefore collat-
erally estopped from relitigating the voluntary nature of
his retirement.
The Board in the first appeal also correctly dismissed
Machulas’s involuntary retirement claim as barred by res
judicata. Res judicata is appropriate if “(1) the prior
decision was rendered by a forum with competent juris-
diction; (2) the prior decision was a final decision 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). Indeed, a second involuntary retirement appeal
was filed shortly after Machulas’s 1996 appeal and dis-
missed on res judicata grounds. See Machulas v. Dep’t of
the Air Force, No. PH-0752-97-0290-I-1 (M.S.P.B. Sep. 2,
1997). Once again, res judicata bars Machulas’s attempt
to relitigate his involuntary retirement claim.
We have considered Machulas’s remaining arguments
and do not find them persuasive. We find no error in the
Board’s well reasoned decisions. Accordingly, we affirm.
AFFIRMED