James F. Gibson v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES F. GIBSON, DOCKET NUMBER

Appellant, SF-1221-13-0442-W-1

v.

DEPARTMENT OF DATE: August 21, 2014

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James F. Gibson, Reno, Nevada, pro se.

Sara Jo Prose, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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 in part due to res judicata

and in part for lack of jurisdiction. Generally, we grant petitions such as this one

only when: the initial decision contains erroneous findings of material fact; the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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initial decision is based on an erroneous 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. We MODIFY

the initial decision to the extent that the administrative judge determined that the

appellant was barred from challenging his January 1989 termination on res

judicata grounds; instead, this claim should have been dismissed because the

termination action predated the effective date of the Whistleblower Protection Act

(WPA). Except as expressly modified by this Final Order, we AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In 1989, the agency terminated the appellant during his probationary period.

He filed an equal employment opportunity (EEO) complaint, and he was

reinstated as part of a settlement agreement. Gibson v. Card, EEOC DOC

03920084, 1992 WL 1374211 at *1 (June 29, 1992). In 1991, the appellant was

removed from his Aviation Safety Inspector position on two charges: failure to

satisfactorily complete flight course 20702, and insubordination in not complying

with the agency’s direction that he complete a reexamination of his airman

competency. Id. The appellant filed a Board appeal. The administrative judge

sustained the agency’s removal and found that the appellant failed to prove that

he was removed based on reprisal for his prior EEO activity. Id. The Board

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denied the petition for review, and the Equal Employment Opportunity

Commission affirmed the Board’s decision regarding the discrimination claim.

Id. In 2012, the appellant filed an Office of Special Counsel complaint, and in

2013, he filed an IRA appeal, claiming that his 1989 termination, his 1991

removal, and other actions constituted reprisal for prior whistleblowing activity.

See, e.g., Initial Appeal File (IAF), Tabs 1, 5, 7, 10, 15, 17-18, 24, 26, 31, 34.

¶3 In the initial decision, the administrative judge dismissed the appeal, in part

based on res judicata, and in part for lack of jurisdiction. IAF, Tab 35, Initial

Decision (ID). The appellant has filed a petition for review; the agency has filed

a response; and the appellant has filed a reply. Petition for Review (PFR) File,

Tabs 1, 5-6. In the appellant’s lengthy petition for review, he appears to review

the factual basis for his complaints and makes other broad assertions of error.

¶4 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 v. U.S. Postal Service, 66 M.S.P.R. 332, 337

(1995). Res judicata precludes parties from relitigating issues that were, or could

have been, raised in the prior action, and is applicable 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. Id. The Board has held that

generally an individual who appeals his removal directly to the Board is barred by

res judicata from bringing, after exhausting his administrative remedies, a second

whistleblower appeal challenging the same removal action. Ryan v. Department

of the Air Force, 113 M.S.P.R. 27, ¶ 13 (2009) (citing Sabersky v. Department of

Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir.

2003)). Based on this precedent, we discern no error with the administrative

judge’s conclusion that the appellant’s earlier Board appeal regarding his 1991

removal bars him from raising a whistleblower appeal challenging the same

action in this matter.

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¶5 In the initial decision, the administrative judge also determined that the

appellant was barred by res judicata from pursuing a claim related to his 1989

termination because the subsequent EEO complaint was resolved by a settlement

agreement. See ID at 4, 6. As support for her conclusion, the administrative

judge cited Ford-Clifton v. Department of Veterans Affairs, 661 F.3d 655 (Fed.

Cir. 2011), and Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir. 1993). See

ID at 4. We find that both of these cases are distinguishable and conclude that it

is not appropriate to dismiss this claim on the grounds of res judicata.

¶6 In Ford-Clifton, our reviewing court noted that it was “widely agreed that

an earlier dismissal based on a settlement agreement constitutes a final judgment

on the merits in a res judicata analysis.” However, the court in Ford-Clifton

found that the parties’ settlement agreement was “lawful” and “a full and

complete settlement of all issues in the appeal.” Ford-Clifton, 661 F.3d at

660-61. Here, however, the parties’ settlement agreement, which resolved the

appellant’s EEO complaint, is not in the record. Although it appears that the

agreement provided for the appellant’s reinstatement and reassignment, and it

also included benefits and back pay, Gibson, EEOC DOC 03920084, 1992 WL

1374211 at *1; IAF, Tab 5 at 11, we cannot tell, and neither party represents,

whether the agreement constituted a “full and complete settlement” or contained

similar language regarding the 1989 termination and any other possible claims

arising at that time.

¶7 In Mays, the appellant’s union settled his grievance regarding a 21-day

suspension, he subsequently filed a Board appeal regarding that same action, and

the court concluded that the Board lacked jurisdiction over the appeal because the

appellant did not specifically reserve in his grievance the right to file a Board

appeal. Mays, 995 F.2d at 1057-60. Because the parties’ settlement agreement is

not in the record, we cannot ascertain whether the appellant waived his Board

appeal rights regarding his termination or any other actions during that time

frame. For these reasons, we are not persuaded by the administrative judge’s

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reliance on these cases and cannot conclude that the appellant’s 1989 termination

is barred by res judicata. See Williams v. Department of Health & Human

Services, 112 M.S.P.R. 628, ¶ 9 (2009) (holding that a settlement agreement that

does not involve an examination of the merits of an agency action does not

constitute a judgment on the merits for res judicata purposes).

¶8 We note, however, that the appellant’s January 3, 1989 termination predates

the July 9, 1989 effective date of the WPA. Lundberg v. Department of the

Navy, 43 M.S.P.R. 382, 385 (1990). Accordingly, the appellant is barred from

pursuing this action and any other personnel action that allegedly occurred before

the effective date of the WPA. See McVay v. Arkansas Nat. Guard, 80 M.S.P.R.

120, 123 (1998) (agreeing with the administrative judge that the letter of

reprimand the appellant received cannot serve as the basis for an IRA appeal

because it was issued on May 4, 1989); Lundberg, 43 M.S.P.R. at 385 (because

the appellant received notice of his pending agency proceeding nearly 4 years

before the effective date of the WPA, the WPA does not apply).

¶9 We also discern no error with the administrative judge’s decision to dismiss

the appeal for lack of jurisdiction because the appellant did not nonfrivolously

allege that the agency took a personnel action against him. ID at 5-7. In the

initial decision, the administrative judge discussed the following other personnel

actions that the appellant alleged were taken against him: (1) his 2007

termination from a private company; (2) his belief that his former supervisor,

J.M., made negative comments about his flying ability and other disparaging

remarks over the years, which “effectively block[ed] him from obtaining a job in

the aviation industry”; (3) an EEO counselor told him in May 2012 that agency

employee J.M. said negative things about him during an EEO investigation; and

(4) his efforts regarding a 1993 checkride (also called a practical test), when he

had to enroll in refresher training at flight school. ID at 6-7. In relevant part, the

administrative judge noted that the whistleblower statutes prohibit a “personnel

action” from being taken “with respect to any employee or applicant for

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employment,” 5 U.S.C. § 2302(b)(8), and the appellant was not an employee or

applicant for employment at any time after his 1991 removal, when these

personnel actions allegedly occurred. See ID at 6-7. She also noted that J.M.’s

alleged negative comments did not constitute a personnel action. ID at 7.

¶10 We discern no error with the administrative judge’s decision in this regard.

In Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 10 (2008), the

Board held that an action taken by a private sector employer “does not meet the

definition of ‘personnel action’ since it was not taken with respect to an employee

in a covered position in an agency or a governmental corporation,” and it

affirmed the administrative judge’s dismissal for lack of jurisdiction. Similarly,

here the Board lacks jurisdiction over any actions taken by the private employer

in 2007.

¶11 The appellant also has not persuaded us that the administrative judge erred

in her analysis of the remaining actions because, at the time of these alleged

actions, the appellant was neither an “employee” nor an “applicant” as set forth

in 5 U.S.C. §§ 2302(a)(2), (b)(8). See, e.g., Nasuti v. Merit Systems Protection

Board, 376 F. App’x 29, 33-34 (Fed. Cir. 2010) (holding that the agency’s

issuance of a Standard Form 50 did not qualify as a “personnel action” under the

WPA because it occurred after the appellant was no longer employed by the

agency). 2 Moreover, the appellant has not identified, and we are not aware of,

any legal authority to support the proposition that negative references by J.M.

constitute a personnel action under the WPA. 3

2

Although Nasuti is an unpublished decision, the Board may rely on unpublished U.S.

Court of Appeals for the Federal Circuit decisions if it finds the court’s reasoning

persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001).

We find the court’s reasoning persuasive.

3

Because we agree with the administrative judge that the appellant has not identified a

personnel action under the WPA, we need not address whether, among other things, the

appellant exhausted his administrative remedies or whether he made a nonfrivolous

allegation of a protected disclosure. See Yunus v. Department of Veterans Affairs,

242 F.3d 1367, 1371 (Fed. Cir. 2001).

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¶12 Finally, the appellant includes documentation on review, including an

affidavit from H.H.P, his March 1990 performance appraisal, an On-the-Job

Training Progress Report, a 1990 Order Granting Request for Stay regarding the

“609” decertification of the appellant’s airman’s pilot’s license, 4 and his May

2013 discovery requests to the agency. See PFR File, Tab 1, Exhibits. These

documents were in the record below and do not constitute new evidence, or they

do not change the outcome on review. Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the

Interior, 3 M.S.P.R. 247, 256 (1980). We have considered the appellant’s

remaining arguments, but they do not warrant a different outcome.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision.

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

4

Gibson v. Department of Transportation, MSPB Docket No. SF122190S0721, Stay

Order (Nov. 9, 1990), found at IAF, Tab 26 at 21-25.

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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.

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

iscontained 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

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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.