Roosevelt Keyes, Jr. v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROOSEVELT KEYES, JR., DOCKET NUMBER
Appellant, SF-1221-15-0030-W-1
v.
DEPARTMENT OF VETERANS DATE: March 27, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Roosevelt Keyes, Jr., Belmont, California, pro se.
Barbara Ann T. Konno, Esquire, Palo Alto, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
relied on res judicata to dismiss the appeal of his removal. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant held the position of Nursing Assistant at an agency health
care facility in Palo Alto, California. See Initial Appeal File (IAF), Tab 1 at 9.
In 2005, the agency removed him for excessive absence. Id. The appellant
submitted a timely appeal to the Board, but the administrative judge affirmed the
removal. See Keyes v. Department of Veteran Affairs, MSPB Docket No.
SF-0752-05-0805-I-1 (0805), Initial Decision (Oct. 28, 2005). Because the
appellant did not file a petition for review, the administrative judge’s initial
decision became the final decision. See id. at 6.
¶3 In 2007, the appellant appealed his removal a second time. See Keyes v.
Department of Veteran Affairs, MSPB Docket No. SF-1221-08-0164-W-1 (0164),
Initial Decision (Jan. 15, 2008). He filed that appeal as an individual right of
action (IRA), alleging that his removal was the result of whistleblower retaliation.
See id. at 3. The administrative judge dismissed the appeal based upon res
judicata, and the Board affirmed that decision on review. Id. at 4; 0164, Final
Order (May 16, 2008).
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¶4 In October 2014, the appellant filed the instant IRA appeal, again alleging
that his 2005 removal was the result of whistleblower retaliation. 2 IAF, Tab 1
at 3; see also id. at 4-8 (correspondence between the appellant and OSC regarding
the alleged disclosure and the alleged retaliatory termination in 2005). The
administrative judge issued an acknowledgment order, instructing the appellant to
file argument and evidence as to why his appeal should not be dismissed for res
judicata. IAF, Tab 2 at 2. Both parties responded. IAF, Tabs 5, 7.
¶5 The administrative judge dismissed the IRA appeal currently before us
based upon res judicata. 3 ID at 1. The appellant has filed a petition for review.
PFR File, Tab 1. The agency has filed a response, and the appellant has filed a
reply. PFR File, Tabs 3-4.
¶6 In his petition, the appellant failed to present any substantive argument
regarding res judicata. Instead, he presented further argument regarding the
merits of his removal. See PFR File, Tab 1. The appellant only addressed res
2
The appellant initiated a whistleblower complaint with the Office of Special Counsel
(OSC). In its July 30, 2014 close out letter, OSC recogn ized that “the Board’s prior
action on your claims related to your termination and your allegations of retaliation and
reprisal to that termination,” thereby barring OSC from taking any action on claims
made in the 2014 complaint. OSC also concluded that the doctrine of laches similarly
precluded it from taking corrective action on his claim. IAF, Tab 8, Initial Decision
(ID).
3
With his appeal, the appellant submitted documentation that suggests that he is once
again employed with the agency. See IAF, Tab 1 at 15-20. The documentation includes
counseling and a direct order, dated August 2014. Id. at 15-17. The administrative
judge found that, to the extent that the appellant may be attempting to appeal those
matters, he is barred from seeking the Board’s review at this time because he failed to
show that he first exhausted his remedies before OSC. ID at 4; see Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013) (in an IRA appeal, the
appellant first must prove that the Board has jurisd iction over the appeal by proving,
inter alia, that he exhausted his administrative remedies before OSC). However, the
appellant’s petition makes clear that he did not intend to appeal those matters in th is
case. See Petition for Review (PFR) File, Tab 1 at 3 (“I will be dealing with that
[August 2014 matter] soon as well on another level”), Tab 4 at 2 (“I will deal with the
situation that occurred in Aug[ust] 2014 when I get finished with th is”). Therefore, we
will not address the issue.
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judicata in his reply, stating that the doctrine should not apply because it was
“based on lies and corrupt practices.” PFR File, Tab 4 at 1.
¶7 Under the doctrine of res judicata, a valid, final judgment on the merits by a
tribunal of competent jurisdiction bars a party from relitigatin g, in a second
action, matters that were or could have been raised in the prior action. Sabersky
v. Department of Justice, 91 M.S.P.R. 210, ¶ 7 (2002), aff’d, 61 F. App’x 676
(Fed. Cir. 2003). Thus, res judicata precludes parties from relitigating issues that
were, or could have been, raised in the prior action if: (1) the prior judgment was
rendered by a forum with competent jurisdiction; (2) the prior judgment was a
final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. See Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995).
¶8 The appellant in Sabersky appealed his removal to the Board. See
Sabersky, 91 M.S.P.R. 210, ¶ 2. After the administrative judge sustained the
removal and that decision became final, the appellant in Sabersky filed an IRA
appeal, alleging that the real reason for his removal was retaliation for
whistleblowing. Id., ¶ 3. The Board concluded that this second appeal was
precluded by res judicata. Id., ¶¶ 7-8. The Board reasoned that, when the
appellant in Sabersky previously appealed his removal, he had the opportunity to
also challenge the removal based upon whistleblower retaliation, so he was
precluded from asserting that new legal theory in a second appeal of the same
personnel action. Id., ¶ 8. Therefore, his IRA appeal was dismissed. Id., ¶ 11.
¶9 The facts of this case are similar to those of Sabersky, and a similar result is
warranted. The appellant first appealed his removal in 2005. See 0805, Initial
Decision. The judgment, affirming his removal, was rendered by a forum with
competent jurisdiction, the Board. See 5 U.S.C. §§ 7701(a), 7512(1). In addition,
the decision became a final judgment on the merits after the appellant failed to
file a timely petition for review. See 0805, Initial Decision at 6. Finally, the
same cause of action, the appellant’s removal, and the same parties, the appellant
5
and the Department of Veterans Affairs, were involved in both the initial appeal
and the appeal currently before us. Compare 0805, Initial Decision, with IAF,
Tab 1. Accordingly, the administrative judge properly found that res judicata
precludes this, the appellant’s third appeal of his 2005 removal, even if he has
new legal theories of improper discrimination or retaliation.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.