Carlton E. Hooker, Jr. v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 44

Docket No. AT-0752-10-0367-B-4

Carlton E. Hooker, Jr.,

Appellant,

v.

Department of Veterans Affairs,

Agency.

July 15, 2015

Carlton E. Hooker, Jr., Saint Petersburg, Florida, pro se.

Karen L. Mulcahy, Esquire, Bay Pines, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant petitions for review of an initial decision that dismissed this

appeal as barred by the doctrine of collateral estoppel. For the following reasons,

we DENY the petition for review and AFFIRM the initial decision AS

MODIFIED by this Opinion and Order, dismissing the appeal as barred by the

doctrine of res judicata.

BACKGROUND

¶2 In a July 27, 2011 Order, the Board remanded this case, which involved the

appellant’s January 4, 2010 removal, for further adjudication. See Hooker v.

Department of Veterans Affairs, MSPB Docket No. AT-0752-10-0367-I-1, Initial

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Appeal File (IAF), Tab 14, Subtab 4a; see also Hooker v. Department of Veterans

Affairs, MSPB Docket Nos. AT-0752-10-0367-I-1, MSPB Docket No. AT-1221-

11-0246-W-1, Remand Order at 2-3 (July 27, 2011) (Remand Order). The Board

found no merit to the appellant’s allegations that the agency denied him due

process and that the administrative judge, in affirming his removal, incorrectly

analyzed and sustained certain charges. Remand Order at 3. Nevertheless, the

Board remanded the appeal to permit the appellant to present documentary and

testimonial evidence regarding his affirmative defense of discrimination in

accordance with the Board’s holding in Davis v. Department of the Interior,

114 M.S.P.R. 527 (2010). Remand Order at 2-3, 5. The Board also found that

further adjudication was required to afford the appellant an opportunity to clarify

whether he was challenging his proposed removal in addition to the effected

removal, and to determine whether his whistleblowing claim, which he initially

raised in connection with his removal, remained an issue in the case. Id. at 3-5.

¶3 On remand, the parties identified the remaining issues in this case as

whether the agency’s action constituted reprisal for whistleblowing activity,

discrimination on the basis of race, and/or unlawful retaliation in response to the

appellant’s equal employment opportunity (EEO) complaints and “other protected

activities.” Hooker v. Department of Veterans Affairs, MSPB Docket No.

AT-0752-10-0367-B-1, Remand Appeal File, Tab 19 at 4-6. Regarding the first

issue, the appellant stated that he made protected disclosures when he provided

testimony about a hostile work environment and prohibited personnel practices

during an administrative investigation in 2008, and when he filed EEO complaints

after that investigation. Id. at 4-5.

¶4 After dismissing the appeal three times without prejudice to refiling at the

appellant’s request, the administrative judge dismissed this refiled appeal with

prejudice upon finding that the elements necessary for the application of

collateral estoppel were present. The administrative judge held that: (1) the

appellant’s allegation in this case that the agency retaliated against him for

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engaging in protected activity leading up to and including his removal from

federal service was identical to that involved in a prior action in a U.S. district

court; (2) the decision in the prior action in U.S. district court was based upon the

same issues raised in this case; (3) the U.S. district court’s determination (to

dismiss the appellant’s case with prejudice because of his willful and intentional

failure to comply with its discovery order addressing his allegation that the

agency retaliated against him for engaging in protected activity leading up to and

including his removal from federal service) was necessary to the court’s final

judgment; and (4) the appellant had a full and fair opportunity to litigate the

issues in U.S. district court. Hooker v. Department of Veterans Affairs, MSPB

Docket No. AT-0752-10-0367-B-4, Refiled Remand Appeal File (RRAF), Tab 10,

Initial Decision at 7-8.

¶5 On petition for review, the appellant asserts that the administrative judge

should not have applied collateral estoppel because the issues in his Board appeal

are different from the issues that were litigated in U.S. district court. Petition for

Review (PFR) File, Tab 3 at 14-15. In this regard, the appellant asserts that the

first two actions he filed in U.S. district court (Hooker I and Hooker II) arose

from his proposed suspension, the third action (Hooker III) filed in U.S. district

court involved claims that “did not mirror the merit systems arguments typically

at issue before the Board,” and the U.S district court summarily dismissed Hooker

III on collateral estoppel grounds. Id. at 15. The appellant also contends that this

Board appeal involves his removal, which he claims has never been litigated on

the merits, while Hooker III involved other matters, such as his proposed removal

and prior suspensions. Id. at 15-17. The appellant asserts that he could not have

raised the claims he raised in Hooker III in the prior two court actions because he

had not exhausted all administrative remedies pertaining to those claims until

after Hooker I and Hooker II had been filed. Id. at 17-18. As set forth below, we

need not address these arguments regarding collateral estoppel because we find

that this appeal is barred by the doctrine of res judicata.

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ANALYSIS

¶6 Notwithstanding any other provision of law, if at any time after the 120th

day following the filing of a mixed-case appeal with the Board under 5 U.S.C.

§ 7702(a)(1) there is no judicially reviewable action, an employee shall be

entitled to file a civil action to the same extent and in the same manner as

provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of

1967 (29 U.S.C. § 633a(c)), or section 16(b) of the Fair Labor Standards Act of

1938 (29 U.S.C. § 216(b)). 5 U.S.C. § 7702(e)(1)(B). Board law permits

simultaneous adjudication of a mixed-case appeal before the Board and a U.S.

district court. Padilla v. Department of the Air Force, 58 M.S.P.R. 561, 567

(1993). As set forth below, we find that the appellant exercised his right under

5 U.S.C. § 7702(e)(1)(B) to file a civil action in U.S. district court.

¶7 The appellant filed his Board appeal challenging his removal on or about

February 1, 2010. IAF, Tab 1. More than 120 days later, on June 3, 2011, after

the administrative judge had affirmed the appellant’s removal in an August 7,

2010 initial decision, but before the Board issued its July 27, 2011 Remand

Order, the appellant filed a complaint in the U.S. District Court for the Middle

District of Florida (Hooker I) alleging, among other things, that the agency

terminated him based on retaliation for protected activity. RRAF, Tab 5 at 11,

14, 17, 19-21. On January 28, 2013, the U.S. district court judge issued an order

granting the agency’s motion for a separate final judgment in Hooker I pursuant

to Federal Rule of Civil Procedure 58(a) (entering judgment). RRAF, Tab 5

at 24-25. The judge noted that she had already entered a December 6, 2012 order

adopting the Report and Recommendation of the Magistrate Judge and dismissing

the action pursuant to Federal Rule of Civil Procedure 37(b)(2) (failure to make

disclosures or to cooperate in discovery; sanctions) based upon the appellant’s

willful failure to comply with the court’s discovery orders. RRAF, Tab 5 at 25.

The clerk of the U.S. district court then issued a January 29, 2013 “Final

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Judgment in a Civil Case,” noting that the action came to a trial or hearing before

the court, the issues were tried or heard, a decision was rendered, and it was

ordered and adjudged that judgment be entered in favor of the defendant and

against the appellant. Id. at 27.

¶8 On December 7, 2012, the appellant filed another civil action (Hooker II) in

the U.S. District Court for the Middle District of Florida in which he alleged that

he was refiling his “terminated complaint” without a substantial change in the

issues or parties. Id. at 28. The appellant again asserted that the agency removed

him in retaliation for protected activity. Id. at 29, 34, 38-39. On February 15,

2013, the court granted the agency’s motion to dismiss the case with prejudice,

finding that it was barred by the doctrine of res judicata. Id. at 51-53. Finally, on

February 10, 2014, the appellant filed a third complaint in the U.S. District Court

for the Middle District of Florida (Hooker III), again alleging that the agency

wrongfully terminated him in retaliation for protected activity. Id. at 54-55, 58,

64-65, 68-69. On April 29, 2014, the court granted the agency’s motion to

dismiss this third complaint as barred by the doctrine of res judicata. Id.

at 83-87. On appeal of Hooker III, the U.S. Court of Appeals for the 11th Circuit

affirmed, finding that the civil actions all arose out of the same nucleus of

operative fact and that the appellant raised, or could have raised, his removal in

all of the cases he had filed in U.S. district court. See Hooker v. Secretary, U.S.

Department of Veterans Affairs, No. 14-12894, 2015 WL 1609928, at *1-3 (11th

Cir. Apr. 13, 2015).

¶9 We find that the appellant exercised his right set forth at 5 U.S.C.

§ 7702(e)(1)(B) when he filed the above civil actions in U.S. district court after

120 days had passed following the filing of his Board appeal. * When an appellant

*

In fact, in an April 10, 2014 “Motion for Voluntary Dismissal Without Prejudice,” the

appellant indicated that he had filed suit in U.S. district court, asserted that a failure to

grant his motion would burden him with concurrently litigating “the same claims”

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exercises the right set forth at 5 U.S.C. § 7702(e)(1)(B), the U.S. district court

has jurisdiction to consider both the discrimination and nondiscrimination claims.

See Bonds v. Leavitt, 629 F.3d 369, 378-79 (4th Cir. 2011), cert. denied, 132 S.

Ct. 398 (2011); see also Ikossi v. Department of the Navy, 516 F.3d 1037,

1040-44 (D.C. Cir. 2008).

¶10 We find that the elements for applying res judicata are present in this case.

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. Peartree v. U.S. Postal

Service, 66 M.S.P.R. 332, 337 (1995). The U.S. district court was a forum with

competent jurisdiction under 5 U.S.C. § 7702(e)(1)(B), as set forth above, and the

court’s determinations were final judgments on the merits. See Bernstein v.

Bankert, 733 F.3d 190, 224-25 (7th Cir. 2012) (suggesting that a dismissal on res

judicata grounds is a final judgment on the merits), cert. denied, 134 S. Ct. 1024

(2014); see also Matter of Reed, 861 F.2d 1381, 1382-83 (5th Cir. 1988)

(dismissal under Federal Rule of Civil Procedure 37(b)(2)(C) is a final judgment

on the merits); Dillard v. Security Pacific Brokers, Inc., 835 F.2d 607, 608 (5th

Cir. 1988) (same); Federal Rule of Civil Procedure 41(b) (a dismissal for failure

to prosecute or comply with the Federal Rules of Civil Procedure operates as an

adjudication on the merits); cf. Nasalok Coating Corp. v. Nylok Corp., 522 F.3d

1320, 1329 (Fed. Cir. 2008) (a default judgment can operate as res judicata in

appropriate circumstances); Triplett v. Office of Personnel Management,

105 M.S.P.R. 575, ¶ 9 (a dismissal for failure to prosecute a Board appeal is a

before the U.S. district court and the Board, and specifically cited to 5 U.S.C.

§ 7702(e)(1) in support of his motion. Hooker v. Department of Veterans Affairs,

MSPB Docket No. AT-0752-10-0367-B-3, Refiled Remand Appeal File, Tab 3 at 4-5.

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valid, final judgment on the merits under the doctrine of res judicata), aff’d,

250 F. App’x 322 (Fed. Cir. 2007). Moreover, as set forth in detail above, the

same cause of action and the same parties were involved in both cases. See Frias

v. U.S. Postal Service, 63 M.S.P.R. 276, 280 (for res judicata purposes, a cause of

action is the set of facts which gives an appellant the right to seek relief from an

agency), aff’d, 43 F.3d 1486 (Fed. Cir. 1994) (Table).

¶11 The appellant contends that, even if the elements for applying collateral

estoppel have been met in this case, a redetermination of his removal is warranted

because there is reason to doubt the quality, extensiveness, and procedural and

substantive fairness of the U.S. district court’s adjudication. PFR File, Tab 3

at 20-21. The appellant also asserts that he has not yet had an opportunity to

address his case under the Davis factors, as required in the Board-ordered

remand, and that the administrative judge violated his right to a fair hearing

because the Board has jurisdiction over this appeal. Id. at 22-25. The appellant

submits with his petition for review the transcript of two depositions in his EEO

complaint that were taken in 2010, which he contends support the merits of his

retaliation claims. Id. at 23-24, 27-28, 30-43. These arguments do not affect our

determination to dismiss this appeal.

¶12 Because we have found that res judicata applies in this case, we need not

address whether there is a reason not to apply collateral estoppel, such as a reason

to doubt the quality of the prior adjudication. See Milligan v. U.S. Postal Service,

106 M.S.P.R. 414, ¶ 9 (2007) (a redetermination of issues may be warranted when

there is reason to doubt the quality or extensiveness of a prior adjudication).

Although the appellant contends that he has not yet had an opportunity to address

the Davis factors in his Board appeal, any such lack of opportunity is the result of

his election under 5 U.S.C. § 7702(e)(1)(B) and the district court’s issuance of its

decisions on the merits. The appellant’s claim that the Board has jurisdiction

over this appeal does not affect our determination to apply res judicata. See

Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 12 (1999) (res judicata is a basis

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to dismiss an appeal over which the Board has jurisdiction). Finally, the

appellant has not alleged or shown that the depositions he submits on review have

any bearing on whether the requirements for applying the doctrine of res judicata

have been met in this case.

¶13 Accordingly, we AFFIRM the initial decision AS MODIFIED by this

Opinion and Order, DISMISSING this appeal based on res judicata.

ORDER

¶14 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. There

are several options for further review set forth in the paragraphs below. You may

choose only one of these options, and once you elect to pursue one of the avenues

of review set forth below, you may be precluded from pursuing any other avenue

of review.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

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Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a.

Other Claims: Judicial Review

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices described in 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

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may request the United States Court of Appeals for the Federal Circuit or any

court of appeals of competent jurisdiction to review this final decision. 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.

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

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

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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.