Payton v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARSHA L. PAYTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1068
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0353-16-0369-I-1.
______________________
Decided: March 10, 2017
______________________
MARSHA L. PAYTON, Holly Hill, FL, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
2 PAYTON v. MSPB
“If at first you don’t succeed, try, try again.” Although
this popular proverb may apply to many things in life, the
legal doctrines of res judicata and collateral estoppel
restrict its application to legal claims. Marsha L. Payton
yet again appeals a final order of the Merit Systems
Protection Board (“the Board”) relating to her removal
from the position of Management Program Specialist with
the United States Customs and Border Protection, a
component of the Department of Homeland Security
(“DHS”), in 2004. This is now her twelfth appeal to this
court regarding her removal. See Payton v. Merit Sys.
Prot. Bd. (Payton XI), 526 F. App’x 957 (Fed. Cir. 2013)
(citing Payton v. Merit Sys. Prot. Bd., 513 F. App’x 963
(Fed. Cir. 2013) (describing Payton’s prior petitions for
review)). In this appeal, Payton again alleges that DHS
erroneously failed to restore her to duty following a com-
pensable injury. See Payton v. Dep’t of Homeland Sec.
(Final Order), 124 M.S.P.R. 38 (M.S.P.B. 2016). This is
the third time Payton has made this particular allegation
in this court. See Payton XI, 526 F. App’x 957; Payton v.
Dep’t of Homeland Sec. (Payton 2010), 403 F. App’x 496
(Fed. Cir. 2010). Because the Board did not abuse its
discretion in applying collateral estoppel for the second
time to this claim, we affirm.
BACKGROUND
Payton’s employment history and her challenges to
her removal have been well documented in previous
opinions. See, e.g., Payton v. Dep’t of Homeland Sec., 300
F. App’x 890 (Fed. Cir. 2008); Payton 2010, 403 F. App’x
496; Payton v. Dep’t of Homeland Sec., 502 F. App’x 942
(Fed. Cir. 2013); Payton v. Merit Sys. Prot. Bd., 513 F.
App’x 963 (Fed. Cir. 2013); Payton XI, 526 F. App’x 957.
We rely on our previous opinions for the general back-
ground of Payton’s removal and provide here only the
facts relevant to our immediate decision.
PAYTON v. MSPB 3
DHS removed Payton from duty in 2004 based on five
charges of misconduct: (1) absence without leave,
(2) failure to follow instructions, (3) insubordination,
(4) unprofessional conduct, and reckless disregard for the
safety of others. Payton 2010, 403 F. App’x at 496–97.
The Board affirmed Payton’s removal. Id. at 497. Payton
filed a petition for review in this court, but the Clerk’s
office returned it as untimely filed. Payton v. Dep’t of
Homeland Sec., 300 F. App’x at 891.
Prior to her removal, Payton suffered an employment-
related injury in 2003. Payton 2010, 403 F. App’x at 497.
The Office of Workers’ Compensation Programs accepted
Payton’s claim for compensation for the injury. Id. In
2009, Payton filed a new appeal with the Board challeng-
ing DHS’s decision not to restore her to duty after a
medical examination cleared her to return to work. Id.
The Administrative Judge (“AJ”) dismissed her appeal for
lack of jurisdiction because DHS had removed Payton for
cause rather than her compensable injury, and the Board
affirmed the AJ’s decision. Id. We affirmed that decision
on appeal because DHS removed Payton based on charges
unrelated to her compensable injury. Id. at 497–98.
In 2011, Payton again challenged DHS’s denial of her
request to restore her to duty. Payton XI, 526 F. App’x at
958. The AJ found Payton’s challenge barred by res
judicata and collateral estoppel, and the Board affirmed
on collateral estoppel grounds. Id. at 957–58. We con-
cluded that collateral estoppel barred Payton’s challenge
and affirmed the Board’s decision. Id. at 959–60.
On February 12, 2016, Payton again appealed to the
Board challenging DHS’s failure to restore her to duty.
Payton v. Dep’t of Homeland Sec. (Initial Decision), 2016
MSPB LEXIS 2375, at *1 (M.S.P.B. Apr. 20, 2016). The
AJ acknowledged Payton’s two previous appeals address-
ing this same issue and issued an Order to Show Cause
(“Order”) explaining the collateral estoppel doctrine and
4 PAYTON v. MSPB
asking Payton to demonstrate why the appeal should not
be dismissed based on collateral estoppel and lack of
jurisdiction. Id. at *4–6. The AJ considered Payton’s
submissions in response to the Order and found that
collateral estoppel applied to the jurisdictional issue. Id.
at *9–10. The Board affirmed the AJ’s ruling on collateral
estoppel. Final Order, 124 M.S.P.B. at 38.
Payton appealed the Board’s decision to this court.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board may apply collateral estoppel to an issue if
the following four factors are satisfied: (1) the issue in the
current case is identical to the issue adjudicated in the
prior case; (2) the issue was actually litigated in the prior
case; (3) the determination of the issue in the prior case
was necessary to the judgment; and (4) the party against
whom collateral estoppel is asserted was fully represented
in the prior case. Morgan v. Dep’t of Energy, 424 F.3d
1271, 1274–75 (Fed. Cir. 2005). The Board correctly
applied collateral estoppel to Payton’s current challenge.
As we concluded in Payton XI, the decision and proceed-
ings in Payton 2010 satisfy each of these factors. Payton
XI, 526 F. App’x at 960. The issue—whether Payton
established the Board’s jurisdiction over her claim—is
identical to the issue presented in Payton 2010. Id. The
issue was actually litigated, it was necessary to the judg-
ment, and Payton was a party to the appeal. Id. Because
the Board correctly determined that collateral estoppel
applies in this case, the Board did not abuse its discretion
when it dismissed the appeal for lack of jurisdiction.
Payton sets forth various arguments in her appeal
that appear to address claims of discrimination and the
PAYTON v. MSPB 5
merits of her removal. 1 Even setting aside the applicabil-
ity of res judicata and collateral estoppel, Payton has
waived the arguments in this case because she did not
raise them until her appeal to this court. See Kachanis v.
Dep’t of the Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000)
(explaining that a party appealing a decision of the Board
cannot raise new issues on appeal); Bosley v. Merit Sys.
Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (explaining
that the court will not consider issues a party fails to raise
before the AJ).
CONCLUSION
We have considered Payton’s remaining arguments,
and we conclude they are meritless. For the foregoing
reasons, we affirm the Board’s Final Order.
AFFIRMED
COSTS
No costs.
1 In a supplemental letter to the court, Payton moves to
charge the MSPB with slander and discrimination.
Because we do not consider such motions in the first
instance, we dismiss the motion.