Wyeroski v. Department of Transportation ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD ANTHONY WYEROSKI,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________
2011-3227
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY1221110059-W-1.
_________________________
Decided: February 13, 2012
_________________________
RICHARD A. WYEROSKI, of Bayport, New York, pro se.
SARAH A. MURRAY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United State Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DONALD E. KINNER,
Assistant Director.
__________________________
WYEROSKI v. TRANSPORTATION 2
Before PROST, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
DECISION
Richard A. Wyeroski petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that (1) dismissed his appeal as barred by the doctrine of
res judicata and (2) denied his request to reopen his 2002
appeal of his removal by the Department of Transporta-
tion, Federal Aviation Administration (“FAA” or
“agency”). Wyeroski v. Dep’t of Transp., No. NY-1221-11-
0059-W-1 (M.S.P.B. Aug. 5, 2011) (“Final Decision”). We
affirm.
DISCUSSION
I.
On December 4, 2002, Mr. Wyeroski timely appealed
to the Board from the action of the FAA removing him
from his position as a safety inspector. Subsequently, in
June of 2003 following a three-day hearing, the adminis-
trative judge (“AJ”) to whom the appeal was assigned
sustained the agency’s action and denied the appeal. See
Wyeroski v. Dep’t of Transp., No. NY-0752-03-0080-I-1
(M.S.P.B. Jun. 3, 2003). On February 5, 2007, Mr.
Wyeroski asked the Board to reopen the appeal regarding
his removal. After the Board denied the request on the
grounds, inter alia, that he had failed to come forward
with newly discovered evidence justifying reopening,
Wyeroski v. Dep’t of Transp., 106 M.S.P.R. 7 (2007), Mr.
Wyeroski sought review from this court. We affirmed,
concluding that, in denying the request to reopen, the
Board had not abused its discretion. Wyeroski v. Merit
Sys. Prot. Bd., 253 Fed. App’x. 950 (Fed. Cir. 2007).
3 WYEROSKI v. TRANSPORTATION
Three years later, on December 3, 2010, Mr. Wyeroski
filed an individual right of action (“IRA”) appeal with the
Board after exhausting his administrative remedies with
the Office of Special Counsel. On March 23, 2011, the AJ
to whom the appeal was assigned dismissed the appeal on
the grounds of res judicata. Wyeroski v. Dep’t of Transp.,
No. NY-1221-11-0059-W-1 (M.S.P.B. Mar. 23, 2011)
(“Initial Decision”). The Initial Decision became the final
decision of the Board on August 5, 2011, after the Board
denied Mr. Wyeroski’s petition for review for failure to
meet the criteria for review set forth at 5 C.F.R. §
1201.115(d). Final Decision at 3. At the same time, the
Board denied Mr. Wyeroski’s concurrent request to reopen
his original 2002 appeal based upon newly discovered
evidence. Id. at 3-4. This petition for review followed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be (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); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). Mr. Wyeroski raises two
arguments on appeal. We address them in turn.
A.
Mr. Wyeroski’s first argument is that the Board erred
in ruling that his IRA appeal was barred by the doctrine
of res judicata. In making this argument, however, Mr.
Wyeroski cites no authority; he simply asserts that res
judicata does not apply.
WYEROSKI v. TRANSPORTATION 4
The thrust of Mr. Wyeroski’s IRA appeal was that
when the FAA removed him from his position in 2002, it
did so in retaliation for protected whistleblowing activity.
In the Initial Decision, the AJ ruled that the appeal was
barred by res judicata based upon the 2002 appeal. In his
decision, the AJ relied upon Ryan v. Dep’t of the Air Force,
113 M.S.P.R. 27 (2009). There, the Board cited to Saber-
sky v. Dep’t of Justice, 91 M.S.P.R. 210 (2002), aff’d 61
Fed. Appx. 676 (Fed. Cir. 2003), which held that an em-
ployee who appeals his removal directly to the Board is
barred by res judicata from bringing an IRA challenging
the same removal because the whistleblowing claim could
have been raised before the Board in the original appeal.
We see no error in the AJ’s ruling dismissing Mr.
Wyeroski’s appeal on the ground of res judicata. The AJ’s
ruling is in line with Ryan and Sabersky, which are fully
consistent with settled law. See Spears v. Merit Sys. Prot.
Bd., 766 F.2d 520, 523 (Fed. Cir. 1985) (holding that an
employee who initially challenged removal on grounds
other than discrimination was barred by res judicata from
later challenging removal on discrimination grounds).
B.
Mr. Wyeroski’s second argument is that the Board
erred in denying his request to reopen his 2002 removal
appeal based upon what he alleges is new and material
evidence. Pursuant to 5 C.F.R. § 1201.115(d), the Board
may grant a petition for review when “[n]ew and material
evidence is available that, despite due diligence, was not
available when the record closed.” Mr. Wyeroski states
that the new evidence he has proves that “the FAA attor-
ney lied in court[,] mislead [sic] the [AJ,] and committed
fraud upon the court.” Appellant Br. at ¶ 6. He further
states that the new evidence shows that the FAA attor-
ney “did not act properly and confused the [AJ].” Id.5 WYEROSKI v. TRANSPORTATION
In denying Mr. Wyeroski’s request to reopen, the
Board noted that its authority to reopen “is generally
limited by the requirement that such authority be exer-
cised within a reasonably short period of time, which is
measured in weeks, not months or years.” Final Decision
at 3 (citing McNeel v. Office of Pers. Mgmt., 113 M.S.P.R.
356, ¶ 16 (2010); Arenal v. Office of Pers. Mgmt., 106
M.S.P.R. 272, ¶ 10 (2007), aff’d, 264 F. App’x 891 (Fed.
Cir. 2008)). The Board also noted, however, that it could
reopen a final decision after a longer interval of time
“where the earlier decision was obtained by fraud, con-
cealment, or misrepresentation by a party.” Id. (citing
Hosey v. Interstate Commerce Comm'n, 81 M.S.P.R. 122,
¶8 (1999)). The Board determined that, because Mr.
Wyeroski was seeking to reopen his removal appeal seven
years after it had been decided and because there was no
evidence of fraud, the request was to be denied. Id. at 3-4.
Having reviewed the record before us, we are satisfied
that the Board did not err in denying Mr. Wyeroski’s
request to reopen his 2002 removal appeal. Mr. Wyeroski
has failed to demonstrate that the new evidence that he
has proffered was not previously available to him, let
alone that it was not available to him until long after his
original appeal. In addition, the new evidence fails to
demonstrate that the agency committed fraud when
applying its policy at the time of Mr. Wyeroski’s removal.
As the Board noted, “[a] subsequent change in policy does
not demonstrate that the agency acted fraudulently in
applying then-current policy.” Id. at 3.
For the foregoing reasons, the Final Decision is af-
firmed.
Each party shall bear its own costs.
AFFIRMED