Payton v. Merit Systems Protection Board ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARSHA L. PAYTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3011
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0353110956-I-1.
______________________
Decided: April 10, 2013
______________________
MARSHA L. PAYTON, of Holly Hill, Florida, 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 was KEISHA
DAWN BELL, Acting General Counsel.
______________________
2 MARSHA PAYTON v. MSPB
Before LOURIE, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Marsha L. Payton (“Payton”) appeals from the final
order of the Merit Systems Protection Board (“Board”)
dismissing her appeal of the Department of Homeland
Security’s (“Agency”) denial of her request for restoration
of duty as barred by collateral estoppel. See Payton v.
Dep’t of Homeland Sec., No. AT-0353-11-0956-I-1
(M.S.P.B. Nov. 3, 2011) (“Notification Order”); (M.S.P.B.
Nov. 29, 2011) (“Initial Decision”); (M.S.P.B. Aug. 3, 2012)
(“Final Order”). Because collateral estoppel was applica-
ble and the Board did not abuse its discretion, we affirm.
BACKGROUND
This is at least Payton’s eleventh appeal to this court.
See Payton v. Merit Sys. Prot. Bd., No. 2012-3212, 2013
U.S. App. LEXIS 5055 (Fed. Cir. Mar. 12, 2013) (citing
Payton v. Dep’t of Homeland Sec., No. 2012-3193, 2013
U.S. App. LEXIS 933 (Fed. Cir. Jan. 15, 2013) (describing
Payton’s previous petitions for review)).
In one of those appeals, Payton challenged the Agen-
cy’s decision not to restore her to her former position as a
Management Program Specialist at the U.S. Customs and
Border Patrol in Miami, Florida, following removal for
cause unrelated to a compensable work-related injury—
namely, her failure to follow instructions and her reckless
disregard for the safety of others. Payton v. Dep’t of
Homeland Sec., 403 F. App’x 496 (Fed. Cir. 2012). In that
action, we upheld the Board’s affirmance of the adminis-
trative judge’s (“AJ”) dismissal for lack of jurisdiction
because our case law holds that an employee who has
been removed for cause unrelated to a compensable injury
is not entitled to restoration and thus cannot appeal any
such failure to restore. Id. at 497 (citing New v. Dep’t of
Veterans Affairs, 142 F.3d 1259, 1265 (Fed. Cir. 1998)).
MARSHA PAYTON v. MSPB 3
On September 20, 2011, Payton filed the appeal to the
Board at issue here, which, inter alia, again challenged
the Agency’s denial of her request for restoration. On
November 3, 2011, the AJ issued an order notifying
Payton that the Board may lack jurisdiction over her
appeal as barred by the doctrine of res judicata because
she had made an identical claim in the previously adjudi-
cated action described above. Notification Order at 1–2.
The AJ’s order informed Payton of the elements of res
judicata, advised her of her burden to establish the
Board’s jurisdiction, and provided her with an opportunity
to submit any basis for finding that res judicata did not
apply to her appeal. Id. Payton submitted a response
that did not address the res judicata doctrine, but instead
reflected her mistaken belief that the Agency had refused
to comply with a Board order to restore her that had
purportedly been affirmed by this court. See Final Order
at 2; see also Payton v. Dep’t of Homeland Sec., 300 F.
App’x 890 (Fed. Cir. 2008) (affirming Board’s decisions
dismissing four of appellant’s removal appeals).
On November 29, 2001, the AJ dismissed Payton’s
appeal as barred by res judicata. Initial Decision at 3.
The AJ further found that, even if res judicata did not
apply, the appeal could be dismissed under the doctrine of
collateral estoppel. Id.On December 14, 2011, Payton filed a petition for re-
view, reiterating her belief that the Agency had “falsified”
her removal and that the Board had subsequently ordered
her restoration, but failing to challenge the AJ’s applica-
tion of res judicata to her appeal. See Final Order at 3.
Because she failed either to show any error in the AJ’s
legal determination that would affect the outcome or to
identify specific evidence in the record demonstrating
error, the Board denied her petition. Id. The Board also
modified the Initial Decision to clarify that the basis for
dismissal was collateral estoppel (issue preclusion) and
not res judicata (claim preclusion) because the latter
4 MARSHA PAYTON v. MSPB
doctrine only applies when a previous ruling constitutes a
decision on the merits. Id. at 3–4. The Initial Decision,
as modified, thus became the final decision of the Board,
which concluded that the issue of Payton’s right to resto-
ration was identical to that actually litigated in the prior
action in which she was fully represented, the determina-
tion of which was necessary to the judgment. Id. at 4–5
(citing Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239
(Fed. Cir. 1988) (setting forth criteria for Board’s applica-
tion of collateral estoppel); Noble v. U.S. Postal Serv., 93
M.S.P.R. 693, ¶ 9 (2003) (pro se status does not preclude
application of collateral estoppel; the “fully represented”
requirement is satisfied when the party to whom collat-
eral estoppel is applied has had a full and fair chance to
litigate the issue in question) (internal citations omitted)).
Payton appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion 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); see Briggs v.
Merit. Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). The Board may apply collateral estoppel to dismiss
an appeal where: “(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.” Morgan v. Dep’t of
Energy, 424 F.3d 1271, 1274–75 (Fed. Cir. 2005); see also
McNeill v. Dep’t of Defense, 100 M.S.P.R. 146, 152 (2005)
MARSHA PAYTON v. MSPB 5
(clarifying that party status in prior action is sufficient to
meet fourth requirement).
We agree that the Board properly denied Payton’s pe-
tition for review as barred by collateral estoppel. First,
the issue in Payton’s current appeal—whether she estab-
lished Board jurisdiction over a claimed right of restora-
tion to duty—is the same issue that was adjudicated in
her prior restoration appeal. Payton, 403 F. App’x at 498.
In both appeals, the precise issue was whether Payton
established jurisdiction by showing that her separation
from the Agency was based on a compensable injury and
was not a removal for cause; her failure to make that
showing thus deprived the Board of jurisdiction. Id. at
497; Final Order at 5; New, 142 F.3d at 1265. The re-
maining criteria for applying collateral estoppel are
satisfied because that issue was actually adjudicated in
Payton’s prior appeal, its resolution was necessary to the
Board’s decision to dismiss that appeal for lack of jurisdic-
tion under 5 C.F.R. § 353.304(b), and Payton was a party
to that appeal. Payton, 403 F. App’x at 497; Final Order
at 5. Accordingly, the Board did not abuse its discretion
in finding that the ruling in Payton’s previous restoration
appeal barred her from relitigating the same issue in this
case under the doctrine of collateral estoppel.
We have considered the additional arguments pre-
sented in Payton’s informal appeal brief but do not find
them persuasive. For the foregoing reasons, the decision
of the Board is
AFFIRMED