The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CALVIN SLOCUM, DOCKET NUMBER
Appellant, AT-0752-07-0157-C-2
v.
UNITED STATES POSTAL SERVICE, DATE: January 8, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eric F. Adams, Esquire, Huntsville, Alabama, for the appellant.
Cynthia R. Eggleston, Esquire, Memphis, Tennessee, 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 compliance initial
decision which dismissed his petition for enforcement under 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed the instant petition for enforcement based upon the
agency’s alleged noncompliance with the Board’s final order in Slocum v. U.S.
Postal Service, AT-0752-07-0157-B-1. MSPB Docket No. AT-0752-07-0157-C-2
(C-2), Compliance File (CF), Tab 1 at 1; see MSPB Docket No. AT-0752-07-
0157-B-1, Final Order (June 6, 2008) (hereafter “Final Order”). In his petition
for enforcement, the appellant argued that he had only received back pay for a
3-month period between October 4, 2006, and January 19, 2007, and that the
agency wrongly denied him back pay between January 21, 2007, and May 25,
2009. C-2, CF, Tab 1 at 1. In further support of his petition, the appellant
asserted that the Board’s prior final order “commanded the USPS to restore the
appellant to duty effective October 4, 2006, and for the Appellant to be made
whole with back pay and other benefits from that date forward.” Id. at 1-2; see
Final Order (denying the agency’s petition for review and ordering the agency to
restore the appellant effective October 4, 2006).
¶3 The agency moved to dismiss the appellant’s petition for enforcement under
the doctrine of res judicata. C-2, CF, Tab 4. In its motion to dismiss, the agency
noted that after the Board issued its prior final order returning the appellant to
3
duty, he, through counsel, entered into a settlement agreement with the agency
providing the appellant back pay between October 4, 2006, and January 20, 2007,
and $6,800 in attorney’s fees. Id. at 80-84. The agency explained, moreover, that
the appellant filed a prior petition for enforcement arguing that the agency
improperly calculated his back pay pursuant to the terms of this agreement and
that the administrative judge assigned to that compliance proceeding 2 found that
the agency was in compliance with the terms of the settlement agreement and
denied the petition for enforcement on the merits. Id. at 3-4; see MSPB Docket
No. AT-0752-07-0157-C-1 (C-1), Compliance Initial Decision (Dec. 4, 2009)
(hereafter “CID-1”). 3
¶4 Based upon this chronology, the administrative judge dismissed the
appellant’s second petition for enforcement under the doctrine of res judicata.
C-2, CF, Tab 11, Compliance Initial Decision (hereafter “CID-2”) at 6. In her
compliance initial decision, the administrative judge found that the appellant
could not maintain his second petition for enforcement because there had been an
earlier determination on the merits that the agency complied with the settlement
agreement and paid him the correct amount of back pay. CID-2 at 5. The
appellant has filed a petition for review asserting that the settlement agreement
did not absolve the agency from compensating him for the entire period of time
he was in a non-pay status and that the agency has failed to comply with the terms
of the Board’s June 6, 2008 final order. C-2, Petition for Review (PFR) File, Tab
1 at 1-2. The agency has filed a response to the petition for review, and the
appellant has filed a reply. PFR File, Tabs 3-4.
2
A different administrative judge was assigned to the appellant’s first petition for
enforcement.
3
In his prior petition for enforcement, the appellant argued, inter alia, that the agency
failed to compensate him for lost overtime and holiday pay and that he incurred
additional medical expenses based upon his loss of health insurance. See C-1, CF, Tab
10. He, however, did not expressly challenge the agency’s issuance of a back pay
check limited to a 3-month period of time. Id.
4
¶5 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. Senyszyn v. Department of the Treasury, 113 M.S.P.R.
453, ¶ 9 (2010). Res judicata precludes the parties from relitigating issues that
were, or could have been, raised in the prior action and is applicable if the
following criteria are satisfied: (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 expressly held that the doctrine of res
judicata applies to issues that were raised, or could have been raised, in a petition
for enforcement. Id.; see Vargo v. U.S. Postal Service, 62 M.S.P.R. 156, 159
(1994) (finding that res judicata did not bar a second petition for enforcement
because the first petition for enforcement was not resolved on the merits, but
rather was dismissed as settled).
¶6 The record demonstrates that the appellant filed his first petition for
enforcement on November 5, 2008, challenging the agency’s alleged failure to
comply with the terms of the settlement agreement. C-1, CF, Tab 1. During the
pendency of that compliance proceeding, the agency issued the appellant a check
for lost back pay between October 6, 2006, and January 20, 2007, and in response
thereto, the appellant “disputed the amounts paid by the Agency” and asserted
that he was owed over $228,000, including lost back pay, overtime and holiday
pay. C-1, CF, Tab 10 at 1-2. The administrative judge assigned to the appellant’s
first petition for enforcement denied the petition on its merits, finding that the
agency properly calculated the appellant’s back pay under the terms of the
settlement agreement and that some of his benefits had been cancelled as the
5
result of a separate enforced leave action taken against the appellant which he
never appealed. 4 CID-1 at 3-4.
¶7 We agree that the doctrine of res judicata bars the appellant’s second
petition for enforcement. CID-2 at 5. We concur with the administrative judge
that the appellant could have raised the issue of whether the agency erred in
limiting its back pay check to 3 months’ pay in his first petition for enforcement, 5
that the administrative judge assigned to the first petition for enforcement
resolved that petition on the merits, and that the administrative judge’s decision
became a final judgment on the merits when the Board denied the appellant’s
petition for review. See CID-2 at 5; MSPB Docket No. AT-0752-07-0157-C-1,
Final Order (May 10, 2010). 6 Additionally, there is no dispute that the Board was
a forum of competent jurisdiction to address the appellant’s allegations of
noncompliance in his prior petition for enforcement. See 5 U.S.C.
§ 1204(a)(2); 5 C.F.R. § 1201.182. We therefore agree with the administrative
judge that res judicata bars the appellant from bringing the second petition for
4
The record reflects that the agency issued the appellant a notice of proposed enforced
leave and a letter of decision imposing a separate period of enforced leave effective
January 20, 2007. C-2, CF, Tab 6 at 48-51.
5
In making this finding, we emphasize that the agency issued the appellant the check
for 3 months’ back pay during the pendency of the first petition for enforcement and
that the administrative judge issued his compliance initial decision in that proceeding
several months after the appellant received the back pay check from the agency. See
C-1, CF, Tab 10 at 11 (back pay check dated January 7, 2009); CID-1 (compliance
initial decision dated December 4, 2009). We thus find that the appellant knew that the
agency issued him back pay for only a 3-month period during the pendency of the prior
petition for enforcement and that he could have moved to include this issue in the first
compliance proceeding. See 5 C.F.R. § 1201.25(b) (an appellant may raise a claim or
defense not included in the appeal at any time before the end of the conference(s) held
to define the issues in the case, and an appellant may raise a new claim or defense after
that time upon a showing of good cause).
6
The appellant filed an appeal of the Board’s final order in MSPB Docket No.
AT-0752-07-0157-C-1 with the U.S. Court of Appeals for the Federal Circuit, which
was subsequently dismissed. See Slocum v. U.S. Postal Service, 455 F. App’x 959 (Fed.
Cir. 2010). The denial of his prior petition for enforcement is thus a final judgment on
the merits for the purposes of res judicata.
6
enforcement alleging agency noncompliance when he could have raised the issue
of the proper scope of his back pay in his prior petition for enforcement. See
Senyszyn, 113 M.S.P.R. 453, ¶¶ 9-12; CID-2 at 5-6.
¶8 The administrative judge’s compliance initial decision dismissing the
appellant’s second petition for enforcement under the doctrine of res judicata is
AFFIRMED and the petition for review is DENIED.
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
7
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, 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 court. 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.