Mark A. McGarry v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK A. MCGARRY, DOCKET NUMBER
Appellant, DE-1221-15-0415-W-1
v.
DEPARTMENT OF VETERANS DATE: September 9, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Michael L. Gurnee, Esquire, Denver, Colorado, 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
dismissed his individual right of action (IRA) appeal based on the doctrine of
res judicata. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
*
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative 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, 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).
BACKGROUND
¶2 The agency removed the appellant from his position as Chief of Veterans
Affairs Police Services in Grand Junction, Colorado, effective July 8, 2013. He
filed a timely Board appeal challenging that removal on July 26, 2013.
McGarry v. Department of Veterans Affairs, MSPB Docket No. DE-0752-13-
0762-I-1. That appeal was dismissed without prejudice at the appellant’s request
and redocketed on September 16, 2014. McGarry v. Department of Veterans
Affairs, MSPB Docket No. DE-0752-13-0762-I-2. The administrative judge
dismissed that appeal, stating as follows:
[T]he appellant’s counsel indicated that the appellant had authorized
him to withdraw this appeal as the appellant no longer wished to
pursue it. . . . I then accepted the withdrawal as knowingly and freely
made after satisfying myself that the appellant and his counsel
understood that the withdrawal would result in my dismissing the
appeal with prejudice to refiling.
DECISION
The appeal is DISMISSED.
3
McGarry v. Department of Veterans Affairs, MSPB Docket No. DE-0752-13-
0762-I-2, Initial Decision at 2 (Nov. 3, 2014). This initial decision became the
Board’s final decision, as neither party filed a petition for review.
¶3 In the instant IRA appeal, filed in May 2015, the appellant asserted that his
July 2013 removal constituted retaliation for whistleblowing disclosures he
allegedly made in 2011. Initial Appeal File (IAF), Tab 1. The agency filed a
motion to dismiss the appeal arguing, among other things, that the appeal should
be barred under the doctrine of res judicata. IAF, Tab 16. The administrative
judge allowed the appellant an opportunity to respond to the motion to dismiss,
IAF, Tab 17, and the appellant did so, IAF, Tab 20.
¶4 In an initial decision, the administrative judge found that the IRA appeal
was barred under the doctrine of res judicata, concluding that all three of the
elements were satisfied for the application of that doctrine: (1) the prior
judgment was rendered by a forum with competent jurisdiction (the MSPB);
(2) the prior decision was a final decision on the merits; and (3) the same cause of
action (the appellant’s removal) and the same parties were involved in both cases.
IAF, Tab 21, Initial Decision (ID) at 4; see Peartree v. U.S. Postal Service,
66 M.S.P.R. 332, 337 (1995). The administrative judge noted that res judicata
bars not only claims that a party raised, but also claims that the party could have
raised in the earlier action. ID at 4; Peartree, 66 M.S.P.R. at 337. Here, the
appellant could have raised, but did not, the affirmative defense of whistleblower
retaliation in the adverse action appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant asserts in his petition for review that the administrative judge
“did not formally designate that [the adverse action appeal] was dismissed ‘with
prejudice’ and Appellant did not understand that the proceeding was so dismissed
thereby precluding this appeal. The earlier order simply pronounces the Appeal
was ‘dismissed.’” Petition for Review File, Tab 1 at 4. This argument is
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disingenuous. Although the administrative judge did not repeat the phrase “with
prejudice” in the final sentence of his initial decision, he expressly stated that he
accepted the withdrawal only after assuring himself “that the appellant and his
counsel understood that the withdrawal would result in my dismissing the appeal
with prejudice to refiling.” The Board has found that a voluntary dismissal with
prejudice does constitute a decision on the merits, barring relitigation under the
doctrine of res judicata. Brown v. Department of the Navy, 102 M.S.P.R. 377,
¶ 10 (2006); Cavanagh v. U.S. Postal Service, 44 M.S.P.R. 485, 489 (1990).
Accordingly, we conclude that the administrative judge properly determined that
this appeal was barred by the application of the doctrine of res judicata.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 U.S. 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
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Board’s decision in the U.S. 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.
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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.