Thasha A. Boyd v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THASHA A. BOYD, DOCKET NUMBER

Appellant, AT-1221-14-0998-W-1

v.

DEPARTMENT OF LABOR, DATE: June 8, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thasha A. Boyd, Kennesaw, Georgia, pro se.

Beth Heleman, and James V. Blair, Esquire, Washington, D.C., 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 her individual right of action (IRA) appeal as barred by 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 on an

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. Except as expressly MODIFIED by

this Final Order, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant brought this IRA appeal, asserting, inter alia, that the agency

committed perjury and subornation of perjury regarding evidence and testimony

in her previous appeals, that her prior 10-day suspension resulted in her inability

to obtain a security clearance, and that she involuntarily resigned or was

constructively discharged from her prior position. Initial Appeal File (IAF),

Tab 1 at 2-4. With her appeal, the appellant submitted a letter from the Office of

Special Counsel (OSC) informing her of her right to seek corrective action before

the Board. Id., Exhibit A1. The administrative judge issued an order to show

cause why the appeal should not be dismissed as barred by the doctrines of res

judicata and/or collateral estoppel. IAF, Tab 6. Both the appellant and the

agency responded to the administrative judge’s order. IAF, Tabs 7, 10. The

administrative judge issued an initial decision finding that the appeal was barred

by res judicata. IAF, Tab 13, Initial Decision.

¶3 The appellant has filed a timely petition for review asserting, inter alia,

that the agency’s perjury and subornation of perjury constitutes a personnel action

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because the action resulted in her 10-day suspension which, in turn, left her

unable to obtain a new job. Petition for Review (PFR) File, Tab 1 at 9. She also

asserts that the administrative judge did not allow her to conduct discovery. 2 Id.

at 10-11. Finally, she challenges the administrative judge’s finding that her claim

is barred by res judicata because she states that she is not attempting to relitigate

her prior claims. Id. at 5-9. The agency has filed a response. PFR File, Tab 3.

¶4 First, we agree with the administrative judge that, to the extent that the

appellant is simply attempting to relitigate the claims raised in her prior appeals,

those claims are barred by res judicata. 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. Johnson v.

Department of Veterans Affairs, 121 M.S.P.R. 695, ¶ 9 (2014), aff’d,

No. 14-9619, 2015 WL 2437090 (10th Cir. May 22, 2015). 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.

¶5 The appellant has several prior and pending appeals. In a joined appeal,

Boyd v. Department of Labor, MSPB Docket Nos. AT-1221-12-0456-W-1 and

AT-1221-12-0665-W-1, the Board affirmed the administrative judge’s denial of

corrective action regarding the appellant’s claim that a 10-day suspension was in

retaliation for her disclosures. Boyd v. Department of Labor, MSPB Docket Nos.

AT-1221-12-0456-W-1, AT-1221-12-0665-W-1, Final Order (Sept. 17, 2013).

The U.S. Court of Appeals for the Federal Circuit affirmed, finding that, contrary

2

The appellant has failed to explain how the discovery sought would help her meet her

burden of proof concerning jurisdiction or res judicata or how her substantive rights

were affected. Accordingly, we find no reversible error in this respect. See Henderson

v. Office of Personnel Management, 109 M.S.P.R. 529, ¶ 21 n.6 (2008).

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to the appellant’s arguments, an agency witness had not perjured himself at the

Board hearing. Boyd v. Department of Labor, 561 F. App’x 978, 981 (Fed. Cir.

2014). As to the appellant’s involuntary resignation appeal, the administrative

judge found that she had failed to establish Board jurisdiction; that decision was

affirmed both by the Board and the Federal Circuit. Boyd v. Department of

Labor, MSPB Docket No. AT-0752-12-0513-I-1, Initial Decision (July 31, 2012),

aff’d, 120 M.S.P.R. 65 (2013) (Table), aff’d, 561 F. App’x 973 (Fed. Cir. 2014). 3

In her pending Board appeals, the appellant alleges whistleblower retaliation

based on her inability to obtain a security clearance due to her prior discipline or

due to a hiring agency’s perception that she is a whistleblower. See Boyd v.

Department of Homeland Security, MSPB Docket No. AT-1221-15-0008-W-1;

see also Boyd v. Department of Labor, MSPB Docket No. AT-3443-13-7178-B-1;

Boyd v. Department of Homeland Security, MSPB Docket No. AT-1221-13-3375-

B-1.

¶6 We find that the requirements for application of res judicata to the prior

judgment in the appellant’s joined IRA appeal are met. Both the Board and the

Federal Circuit have jurisdiction to hear appeals of employees concerning

whistleblower retaliation, 5 U.S.C. §§ 1221(a), 7703(a)(1), and it is undisputed

that there was a final judgment on the merits in the prior joined IRA appeal.

Accordingly, to the extent that the appellant is simply attempting to relitigate

claims she raised or could have raised in her prior IRA appeal, the administrative

judge properly applied res judicata. See Groseclose v. Department of the

Navy, 111 M.S.P.R. 194, ¶ 29 (2009).

¶7 We further find that, to the extent that the appellant’s claims are not barred

by res judicata, the Board does not have jurisdiction over the claims raised in this

3

The Board denied a motion to reopen these three appeals in which the appellant had

contended that the agency committed perjury. IAF, Tab 1, Exhibit B1, Tab 4 at 20.

The appellant has appealed the Board’s denial of her motion to reopen to the Federal

Circuit. IAF, Tab 4 at 15-17.

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appeal. The Board has jurisdiction over an IRA appeal if the appellant has

exhausted her administrative remedies before the OSC and makes nonfrivolous

allegations that (1) she engaged in whistleblowing activity by making a protected

disclosure, and (2) the disclosure was a contributing factor in the agency’s

decision to take or fail to take a personnel action. 4 Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1371-72 (Fed. Cir. 2001). The Board has

jurisdiction only over those issues raised before OSC. Kinsey v. Department of

the Navy, 107 M.S.P.R. 426, ¶ 11 (2007).

¶8 Below, the appellant asserted that her prior 10-day suspension has resulted

in her inability to obtain a security clearance and employment; she also asserted

that she involuntarily resigned. IAF, Tab 1 at 3-4. In its letter to the appellant,

OSC stated that the appellant had alleged that agency officials, by committing

perjury at her Board hearing, retaliated against her for her protected disclosures.

IAF, Tab 1, Exhibit A1. The record does not contain any other evidence

concerning the appellant’s complaint before OSC. Accordingly, we find that the

appellant has failed to establish Board jurisdiction over her assertions concerning

the security clearance or her resignation because there is no evidence that she

raised these claims before OSC. See Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶¶ 14-15 (2011) (regardless of whether the alleged

agency action constituted a personnel action, the Board lacked jurisdiction over

the appellant’s claim as to one of the agency’s actions where she did not exhaust

her remedy with OSC regarding the action).

¶9 We also find that, although the appellant has exhausted her remedy with

OSC concerning her claims regarding perjury, she has not nonfrivolously alleged

4

The administrative judge failed to provide the appellant with explicit notice

concerning what she needed to allege to establish jurisdiction. However, the agency

provided such notice in its pleadings. IAF, Tab 4 at 4. Accordingly, we find that the

appellant had notice of the Board’s jurisdictional requirements in her specific case and

could address those issues below and on petition for review. See Scott v. Department of

Justice, 105 M.S.P.R. 482, ¶ 6 (2007).

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that perjury or subornation of perjury are covered personnel actions. In the

context of an IRA appeal, the applicable statute defines a number of specific

actions that constitute covered personnel actions and also provides that “any other

significant change in duties, responsibilities, or working conditions” will

constitute a covered personnel action. 5 U.S.C. § 2302(a)(2)(A). We find that

the appellant’s assertion that the agency committed perjury and subornation of

perjury does not constitute a nonfrivolous allegation of a personnel action

because such actions do not meet the statutory definition. See Brown v.

Department of the Navy, 102 M.S.P.R. 377, ¶ 7 (2006) (denial of employee’s right

to have equal employment opportunity representation was not a personnel action).

Furthermore, we are not persuaded by the appellant’s argument that the alleged

perjury or subornation of perjury constitutes a personnel action because of the

effect such actions have had on personnel actions such as her inability to obtain a

new position. See generally Reed v. Department of Veterans

Affairs, 122 M.S.P.R. 165, ¶ 13 (2015) (various actions and procedures leading up

to the appellant’s 3-day suspension did not amount to personnel actions).

Accordingly, we find that the administrative judge correctly determined that the

present appeal is barred by the doctrine of res judicata. Alternatively, we find

that the appellant failed to meet her burden of proving jurisdiction over this IRA

appeal, and we modify the initial decision in this regard. We have considered the

appellant’s remaining arguments and find that they do not provide a basis for

reaching a different result.

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.

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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 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 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

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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 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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.