Johnson v. Merit Systems Protection Board ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES G. JOHNSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1022
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0353-16-0041-I-1.
______________________
Decided: June 9, 2017
______________________
CHARLES G. JOHNSON, Omaha, NE, pro se.
JEFFREY GAUGER, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK, KATHERINE
M. SMITH.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
2 JOHNSON v. MSPB
Charles G. Johnson, a former employee of the United
States Postal Service, alleges that he was involuntarily
subjected to early retirement and that the Postal Service
improperly denied him restoration to his position. The
Merit Systems Protection Board concluded that his claims
were barred by Board rejections of claims he presented to
the Board in earlier proceedings raising the same issues.
We affirm.
I
Mr. Johnson began working for the Postal Service in
1960. Johnson v. Merit Sys. Prot. Bd., 592 F. App’x 935,
935 (Fed. Cir. 2014). He retired on November 20, 1992.
Id.; Pet’r’s Supp. Br. 1.
Soon afterward, Mr. Johnson challenged his retire-
ment as resulting from age discrimination. Johnson v.
U.S. Postal Serv., 66 M.S.P.R. 604, 606 (1995). The Postal
Service denied his complaint, and Mr. Johnson appealed
to the Board. Id. The administrative judge held that the
Board lacked jurisdiction because Mr. Johnson had not
shown that his retirement was involuntary. Id. That
holding became the Board’s final determination because,
the full Board ruled, Mr. Johnson did not timely seek the
full Board’s review of the administrative judge’s decision.
Id. at 608–09. The full Board ended by warning: “The
doctrine of collateral estoppel [or issue preclu-
sion] . . . bars [Mr. Johnson] from filing another appeal in
the same forum that raises the same jurisdictional issue
[of his retirement], and [the Board] will not entertain
such an appeal.” Id. at 609.
In 2010, Mr. Johnson wrote to the Postal Service to
request restoration to his position based on the allega-
tions that his employment had ended in 1992 because of a
compensable injury, i.e., tinnitus developed as a result of
his work conditions, and that he had sufficiently recov-
ered. Pet’r’s Supp. Br. 1; see Johnson, 592 F. App’x at
936. “A federal employee who has been separated from
JOHNSON v. MSPB 3
his position because of a compensable injury enjoys cer-
tain rights to restoration to his prior position or an equiv-
alent position when he fully or partially recovers from the
condition that had kept him from working.” Johnson v.
Merit Sys. Prot. Bd., 455 F. App’x 984, 985 (Fed. Cir.
2012) (citing 5 U.S.C. § 8151; 5 C.F.R. § 353.301). The
Postal Service denied Mr. Johnson’s request, explaining
that his retirement was not the result of that claimed
injury. Johnson, 592 F. App’x at 936. Mr. Johnson ap-
pealed to the Board. Id. After this court ordered the
Board to consider “whether Mr. Johnson has shown that
his separation was substantially related to his compensa-
ble injury and, if so, whether he has fully or partially
recovered from his injury,” Johnson, 455 F. App’x at 986,
the administrative judge found that Mr. Johnson had not
proven that he had recovered from his injury, Johnson,
592 F. App’x at 937. The full Board affirmed, id., and this
court affirmed the full Board, id. at 938.
The present case involves Mr. Johnson’s filing with
the Board on October 20, 2015. In that Board appeal, he
again challenged the voluntariness of his retirement and
the denial of his restoration request. Initial Decision at 1,
Johnson v. U.S. Postal Serv., No. DE-0353-16-0041-I-1
(M.S.P.B. Dec. 18, 2015). In response, the Postal Service
invoked collateral estoppel (issue preclusion) based on the
earlier Board rulings. Resp’t’s Supp. App. 37–38. The
administrative judge agreed, concluding that Mr. Johnson
had simply not identified any material allegation different
from those already rejected in the earlier rulings. Initial
Decision at 1. Specifically with respect to the restoration
claim, the administrative judge concluded that collateral
estoppel applied to the extent that Mr. Johnson argued
that he had recovered in 2010 at the time the Postal
Service denied him restoration, and to the extent that Mr.
Johnson alleged a subsequent denial based on recovery in
the period after 2010, the administrative judge found no
nonfrivolous allegations of such a denial. On August 5,
4 JOHNSON v. MSPB
2016, the Board affirmed that decision, modifying the
initial decision only to “provide the applicable burden of
proof for restoration claims.” Final Order at 2, Johnson v.
U.S. Postal Serv., No. DE-0353-16-0041-I-1 (M.S.P.B.
Aug. 5, 2016).
Mr. Johnson appeals. We have jurisdiction under
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
II
We may set aside the Board’s decision here only if we
found it to be “arbitrary, capricious, an abuse of discre-
tion, . . . otherwise not in accordance with law[,] . . . [or]
unsupported by substantial evidence.” 5 U.S.C. § 7703(c).
Here, the basis of the decision is the doctrine of collateral
estoppel (issue preclusion), which blocks duplicative
litigation by barring a litigant from presenting an issue
where “(1) [the] issue is identical to that involved in the
prior action; (2) the issue was actually litigated in the
prior action; (3) the determination on the issue in the
prior action was necessary to the resulting judgment; and
(4) the party against whom issue preclusion is sought had
a full and fair opportunity to litigate the issue in the prior
action, either as a party or as one whose interests were
otherwise fully represented in that action.” Encarnado v.
Office of Pers. Mgmt., 116 M.S.P.R. 301, 307 (2011) (citing
Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239 (Fed. Cir.
1988)). We review the Board’s application of the doctrine
here without deference to the Board. See Morgan v. Dept.
of Energy, 424 F.3d 1271, 1274 (Fed. Cir. 2005).
We find no error in the Board’s ruling with respect to
either Mr. Johnson’s allegation of involuntary retirement
or his allegation of facts sufficient to state a claim for
restoration. As to the voluntariness of the retirement: the
issue was raised and decided in Mr. Johnson’s 1995 Board
appeal. See Johnson v. U.S. Postal Serv., 66 M.S.P.R. at
609. The determination of voluntariness was necessary to
the resulting judgment, id. at 606, and Mr. Johnson “had
JOHNSON v. MSPB 5
a full and fair opportunity to litigate the issue,” Encarna-
do, 116 M.S.P.R. at 307.
Similarly as to the bases for a restoration claim: the
issues were raised and decided in the 2010–2014 proceed-
ings, in which the Board, affirmed by this court, found at
least one crucial fact missing—sufficient recovery from his
alleged injury. See Johnson, 592 F. App’x at 938. The
decision regarding Mr. Johnson’s restoration claim was
necessary to the decision, and he had a full and fair
opportunity to litigate the issue. Mr. Johnson has not
pointed to any difference between the restoration claim he
now makes and the one he lost in the 2010–2014 proceed-
ings. In particular, we see no error in the Board’s finding
that Mr. Johnson made no nonfrivolous allegation that
the Postal Service denied a restoration request other than
his 2010 request.
III
We affirm the Board’s ruling on collateral estoppel.
No costs.
AFFIRMED