Kimbrough v. Department of Defense , 287 F. App'x 861 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3160
MALCOLM S. KIMBROUGH,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Malcolm S. Kimbrough, of San Antonio, Texas, pro se.
Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief
was Jessica A. VanLeeuwen, Associate Counsel, European Operations, Defense
Contract Management Agency.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3160
MALCOLM S. KIMBROUGH,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Petition for review of the Merit Systems Protection Board in DC3443070815-I-1.
__________________________
DECIDED: July 9, 2008
__________________________
Before DYK, PROST, and MOORE, Circuit Judges.
PER CURIAM.
Malcolm S. Kimbrough (Mr. Kimbrough) appeals the final order of the Merit
Systems Protection Board (Board) denying his petition for review of his claims that the
United States Department of Defense’s Defense Contract Management Agency
(DCMA) violated the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA). Kimbrough v. Dep’t of Def., No. DC3443070815-I-1 (Dec. 17, 2007).
When the Board denied review, the administrative judge’s (AJ) decision became the
final decision of the Board. For the reasons set forth below, we affirm.
BACKGROUND
Mr. Kimbrough previously filed a Board appeal challenging the removal action
taken by the DCMA. The Board had jurisdiction over the prior removal appeal, and
sustained the removal action in an initial decision dated August 1, 2006. The full Board
denied Mr. Kimbrough’s petition for review, and the initial decision became final on
January 31, 2007. Mr. Kimbrough filed a request asking this court to review the Board’s
final decision, but we dismissed the appeal a short time later.
Mr. Kimbrough filed the present appeal with the Board on August 7, 2007,
requesting relief under USERRA. Mr. Kimbrough apparently claimed that (1) DMCA
violated his USERRA rights when it removed him in January 2006 (USERRA
discrimination appeal), and (2) DMCA also denied his USERRA restoration rights by
failing to grant a request for restoration he allegedly made sometime after DCMA had
removed him (USERRA restoration appeal). The AJ issued a show cause order on
August 16, 2007, explaining the principles of res judicata and how it could prevent Mr.
Kimbrough from litigating a USERRA discrimination or restoration issue connected to
his removal. Mr. Kimbrough timely responded, the AJ issued a second show cause
order, and Mr. Kimbrough again timely responded. The AJ then issued an initial
decision, concluding that res judicata prevents Mr. Kimbrough from litigating allegations
of USERRA discrimination relating to his removal action. The AJ also concluded that
Mr. Kimbrough failed to make a nonfrivoulous allegation of jurisdiction over his USERRA
restoration appeal. The AJ therefore denied Mr. Kimbrough’s USERRA discrimination
appeal, and dismissed his USERRA restoration appeal for lack of jurisdiction. On
December 17, 2007, the Board issued a final order denying Mr. Kimbrough’s petition for
review, and the initial decision became final. This appeal followed.
2008-3160 2
DISCUSSION
We affirm a decision of the Board unless it is: “(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). The scope of the Board’s jurisdiction is a
legal question that we review de novo. Monasteri v. Merit Sys. Prot. Bd., 232 F.3d
1376, 1378 (Fed. Cir. 2000) (citations omitted).
First, we agree with the Board that res judicata precluded Mr. Kimbrough from
relitigating allegations of USERRA discrimination relating to his removal. Res judicata
precludes parties from relitigating issues that could have been raised in a prior action if:
“(1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment upon the merits; (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). The Board properly determined that (1) it
exercised jurisdiction over Mr. Kimbrough’s January 2006 removal appeal; (2) the prior
adjudication resulted in a final judgment upon the merits; and (3) the same parties and
cause of action were involved in both appeals.
In his petition, Mr. Kimbrough alleges that the Board failed to take into account
his “mental state.” Pet. Br., Answer to Question No. 2. But Mr. Kimbrough’s alleged
mental state is not relevant to whether the application of res judicata bars his USERRA
discrimination appeal. We conclude the Board properly determined that Mr. Kimbrough
could have raised his current USERRA discrimination claim in the first removal appeal.
2008-3160 3
To the extent that Mr. Kimbrough’s restoration appeal is based on USERRA, Mr.
Kimbrough argues that the Board failed to apply 38 U.S.C. § 4301(a)(3), which states
that one purpose of USERRA is: “to prohibit discrimination against persons because of
their service in the uniformed services.” 38 U.S.C. § 4301(a)(3). Mr. Kimbrough takes
issue with the fact that the Board’s initial decision expressly mentions only §§
4301(a)(1) and (a)(2). The restoration provisions of USERRA, including § 4301(a)(3),
are applicable only to non-career military service. See Moravec v. Office of Pers.
Mgmt., 393 F.3d 1263, 1267 (Fed. Cir. 2004). It is undisputed that Mr. Kimbrough
performed career military service from June 1979 to July 2000, and that he is receiving
military retired pay. Accordingly, we perceive no error in the Board’s final decision
dismissing the USERRA restoration appeal for lack of jurisdiction.
To the extent that Mr. Kimbrough is contending that he was denied restoration
rights after a compensable workplace injury under 5 U.S.C. § 8151 and 5 C.F.R.
§ 353.301, we conclude that this argument also fails. As the Board noted, it is well
established that restoration rights under 5 U.S.C. § 353.301 do not extend to an
employee who was removed from his position for cause apart from his workplace injury.
See 5 C.F.R. § 353.108 (“[S]eparation for cause that is substantially unrelated to the
injury . . . negates restoration rights.”); Minor v. Merit Sys. Prot. Bd., 819 F.2d 280, 282
(Fed. Cir. 1987) (“An employee who has been removed for cause rather than a
compensable injury is not entitled to restoration and cannot appeal to the Board.”). The
Board correctly concluded that, Mr. Kimbrough is barred from challenging in this
proceeding the Board’s earlier conclusion that Mr. Kimbrough’s discharge was due to
his failure to properly document his injury and request leave. As a result of this
2008-3160 4
termination for cause, Mr. Kimbrough has no right to restoration under 5 U.S.C. §
353.301.
We have considered, but reject, Mr. Kimbrough’s remaining arguments. For the
foregoing reasons, we affirm the Board’s decision.
COSTS
No costs.
2008-3160 5