The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE A. LAWSON, DOCKET NUMBER
Appellant, PH-0752-21-0147-I-1
v.
SOCIAL SECURITY DATE: February 7, 2025
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michael Fallings , Esquire, Austin, Texas, for the appellant.
Jaymin Parekh , Esquire, and Julie Tong , Esquire, Baltimore, Maryland, for
the agency.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*The Board members voted on this decision before January 20, 2025.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as res judicata. For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant formerly held the position of Supervisory Management
Analyst, GS-14, in the agency’s Office of Realty Management. Lawson v. Social
Security Administration, MSPB Docket No. PH-0752-21-0147-I-1, Initial Appeal
File (0147 IAF), Tab 6 at 12. On July 13, 2020, the agency proposed to demote
him to the position of Management Analyst, GS-13, in the Office of Media and
Logistics Management, based on alleged misconduct. Id. at 13. That same day,
the appellant filed an equal employment opportunity (EEO) complaint, in which
he alleged that he had suffered harassment based on race and disability when,
among other things, the agency proposed his demotion. Id. at 24-26. The agency
partially accepted the complaint but dismissed the claim involving the proposed
demotion, as the proposal was only a preliminary step. Id. at 27-28.
Effective August 30, 2020, the agency demoted the appellant to the GS-13
Management Analyst position. Id. at 43-52. On September 24, 2020, the
appellant emailed the agency’s EEO office, asking to amend his pending
complaint to include the effected demotion. Id. at 53-54. Shortly thereafter, on
September 29, 2020, the appellant filed a Board appeal contesting his demotion.
Id. at 55-65; Lawson v. Social Security Administration, MSPB Docket No.
PH-0752-20-0483-I-1, Initial Appeal File (0483 IAF), Tab 1. On October 9,
2020, the agency informed the appellant that it had accepted his request to amend
his EEO complaint. 0147 IAF, Tab 6 at 66-67.
On October 19, 2020, the agency moved to dismiss the Board appeal,
arguing that the Board lacked jurisdiction because the appellant had elected to
challenge his demotion by filing an EEO complaint. 0483 IAF, Tab 4. The
administrative judge issued an order explaining that the appeal appeared to be
3
premature, as the agency had not issued a final agency decision (FAD) and
120 days had not yet passed since the appellant’s EEO complaint was amended to
include the demotion. 2 0483 IAF, Tab 6 at 1-2; see 5 C.F.R. § 1201.154(b). The
administrative judge directed the parties to submit evidence and argument on the
jurisdictional issue. Id. at 2. The appellant did not provide a substantive
response to the order but instead filed a pleading consisting of the following
sentence: “The Appellant, Wayne Lawson, by and through his undersigned
counsel, hereby moves that his above-captioned MSPB appeal be withdrawn with
prejudice.” 0483 IAF, Tab 8 at 4.
On November 2, 2020, the administrative judge issued an initial decision
dismissing the appeal. 0483 IAF, Tab 9, Initial Decision (0483 ID). She
explained that the appellant, through counsel, had indicated that he wished to
withdraw his appeal with prejudice and found that that his withdrawal was
voluntary and unequivocal. Id. at 1. She further noted that the withdrawal of an
appeal is final and serves to remove the case from the Board’s jurisdiction.
Id. at 2 (citing Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010)).
Given the appellant’s decision to withdraw his appeal, the administrative judge
did not make a finding as to whether the appeal would have otherwise been ripe
2
To challenge an adverse action an employee believes resulted from prohibited
discrimination, the employee may file an EEO complaint with the employing agency or
a mixed case appeal with the Board, but not both. 29 C.F.R. § 1614.302(b). Whichever
is filed first is deemed to be an election to proceed in that forum. Id. When, as in this
case, an appellant first has timely filed a formal complaint of discrimination with the
agency, an appeal to the Board must be filed within 30 days after the appellant receives
a FAD on the discrimination issue. 29 C.F.R. § 1201.154(b)(1). Alternatively, if the
agency has not resolved the matter or issued its final decision within 120 days, an
appellant may appeal the matter directly to the Board. 29 C.F.R. § 1201.154(b)(2).
4
for adjudication. 3 The initial decision became final when neither party filed a
petition for review.
On February 9, 2021, the agency issued a FAD on the mixed-case portion
of the appellant’s complaint, finding that he did not establish disparate treatment
or retaliation in connection with his demotion. 0147 IAF, Tab 6 at 85-106. On
March 10, 2021, the appellant filed the instant Board appeal. 0147 IAF, Tab 1.
The administrative judge assigned to the new appeal issued a show-cause
order, explaining that the appeal appeared to be barred under the doctrine of
res judicata, given the result of the prior appeal. 0147 IAF, Tab 7. He ordered
the appellant to submit evidence and argument as to why his new appeal should
not be dismissed under the doctrine of res judicata. Id. In response, the
appellant argued that res judicata did not apply because the prior appeal was
dismissed to allow the appellant to obtain a FAD and refile with the Board.
0147 IAF, Tab 8 at 6-8. The administrative judge determined that the doctrine of
res judicata was applicable and issued an initial decision dismissing the appeal.
0147 IAF, Tab 9, Initial Decision.
On petition for review, the appellant argues that the administrative judge
erred in applying the doctrine of res judicata. Petition for Review (PFR) File,
Tab 1 at 7-9. Citing Peartree v. U.S. Postal Service, 66 M.S.P.R. 332 (1995), he
argues that the initial decision in the prior appeal was not a final judgment on the
merits because the administrative judge dismissed that appeal to allow the agency
to investigate and issue a FAD on the pending EEO complaint. Id. In response,
the agency argues that the dismissal of the appellant’s first appeal was a final
judgment on the merits for purposes of res judicata. PFR File, Tab 3 at 7-9. The
3
Had the administrative judge determined that the appeal was prematurely filed under
5 C.F.R. § 1201.154(b), it would have been appropriate to either dismiss the appeal
without prejudice to refiling or hold the appeal until it became timely. 5 C.F.R.
§ 1201.154(c).
5
agency contends that Peartree is distinguishable because the appellant in this
case explicitly requested that his first appeal be dismissed “with prejudice.” Id.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree, 66 M.S.P.R. at 337. Res judicata applies
when (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. Id.
It is well established that the Board must have jurisdiction over an appeal
for its decision to have res judicata effect. See Noble v. U.S. Postal Service,
93 M.S.P.R. 693, ¶ 6 (2003). Regardless of whether the appellant’s prior appeal
was ripe for adjudication, his decision to withdraw the appeal sufficed to remove
it from the Board’s jurisdiction. See Lincoln, 113 M.S.P.R. 486, ¶ 7.
Consequently, the dismissal of that appeal does not act as a bar to the present
action. See Cavanagh v. U.S. Postal Service, 44 M.S.P.R. 485, 488-89 (“[A]
voluntary dismissal of an action at the request of the party bringing that action
generally is not regarded as barring a new action on the same subject matter.”); 4
see also Krafsur v. Social Security Administration, 122 M.S.P.R. 679, ¶ 13 (2015)
(citing Fed. R. Civ. P. 41(a)(2)) (“[T]he voluntary withdrawal of a complaint is
4
The Board recognized an exception to this rule where the party requesting voluntary
dismissal “affirmatively appears [to have] intended to abandon the action.” Cavanagh,
44 M.S.P.R. at 489 (quoting 50 C.J.S. Judgments § 633 (1947)). However, as in
Cavanagh, we are not persuaded that the appellant in this case had any such intention.
Rather, we find that the withdrawal of his first appeal was consistent with 5 C.F.R.
§ 1201.154(a), which provides that an appellant may pursue a discrimination complaint
in his agency and later pursue a Board appeal arising from the same action. See
Cavanagh, 44 M.S.P.R. at 489.
6
not equivalent to a dismissal with prejudice.”); contra Brown v. Department of
the Navy, 102 M.S.P.R. 377, ¶ 10 (2006).
To the contrary, when an appellant who has already filed a formal
discrimination complaint with his agency later files an appeal of the action that is
the subject of the complaint and then chooses to withdraw his appeal in order to
pursue his complaint first, the Board’s practice is generally to dismiss the appeal
without prejudice to its later refiling. Cavanagh, 44 M.S.P.R. at 489. The
dismissal of the appellant’s prior appeal was consistent with this practice, and
there is nothing in the decision to indicate that the dismissal was with prejudice.
Accordingly, we vacate the initial decision and remand the case for further
adjudication.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: _____________________________ _
Gina K. Grippando
Clerk of the Board
Washington, D.C.