The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL J. BISHOP, DOCKET NUMBER
Appellant, NY-1221-15-0186-W-1
v.
DEPARTMENT OF HOMELAND DATE: September 28, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul J. Bishop, Hillsborough, New Jersey, pro se.
Frank C. Sharp, Esquire and Deborah Rubin, Esquire, New York, New
York, 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 his 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative 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, 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 initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
¶2 On April 24, 2015, the appellant filed an IRA appeal in which he alleged
that, effective August 20, 2007, the agency terminated him from his excepted
service position as a GS-11 Agriculture Specialist 2 based on his protected
disclosures. Initial Appeal File (IAF), Tab 1 at 9. With his appeal, the appellant
submitted a copy of a March 25, 2015 letter from the Office of Special Counsel
stating that it had made a final determination to close its file on his complaint and
advising him of his right to seek corrective action from the Board. Id. at 14.
¶3 The administrative judge ordered the appellant to show cause why his
appeal should not be dismissed as barred by res judicata based on his having
previously filed an IRA appeal alleging that his termination was in retaliation for
whistleblowing. IAF, Tab 3. In response, the appellant argued that res judicata
was not applicable because the Board lacked jurisdiction over his termination and
therefore there had been no final judgment on the merits. IAF, Tab 5.
¶4 The administrative judge dismissed the appeal as barred by res judicata.
IAF, Tab 8, Initial Decision (ID) at 2-5. He found that: (1) on April 22, 2009,
2
The appellant’s appointment was pursuant to the Federal Career Intern Program. See
5 C.F.R. § 213.3202(o); Initial Appeal File (IAF), Tab 5 at 13.
3
the appellant filed a timely IRA appeal alleging that his 2007 termination was in
retaliation for whistleblowing; (2) following a hearing, the administrative judge
denied the appellant’s request for corrective action, Bishop v. Department of
Homeland Security, MSPB Docket No. NY-1221-09-0209-W-1, Initial Decision
(Oct. 14, 2009); and (3) the Board denied the appellant’s petition for review of
that decision, Bishop v. Department of Homeland Security, MSPB Docket No.
NY-1221-09-0209-W-1, Final Order (Feb. 24, 2010), rendering the initial
decision the Board’s final decision in the matter. The administrative judge found
that the Board had jurisdiction over the appellant’s previous IRA appeal, that the
prior judgment was a final judgment on the merits, and that it involved the same
cause of action and the same parties or their privies as are involved in the instant
case. To the extent that the appellant appeared to argue that the agency retaliated
against him when he disclosed that the agency improperly promoted him from
GS-9/1 to GS-11/2 on the same day, the administrative judge found that the
appellant could have raised that claim in his first IRA appeal and that therefore
res judicata barred that claim as well. ID at 5.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3,
and the appellant has filed a reply thereto, 3 PFR File, Tab 4.
3
The appellant was required to file his reply to the agency’s response within 10 days
after the date of service of the response, or by August 10, 2015. PFR File, Tab 2;
5 C.F.R. § 1201.114(e). The appellant’s August 31, 2015 reply, PFR File, Tab 4, was
not timely filed. Nor did he comply with the Board’s regulations, which require that he
timely request an extension of time to file. See 5 C.F.R. § 1201.114(f). He appears to
suggest that the reason for the late filing is newly discovered evidence, specifically, the
Board’s May 2015 report, “What is Due Process in Federal Civil Service
Employment?,” which the Board provided to him on August 11, 2015. PFR File, Tab 4.
Even if we were to consider the appellant’s stated reason for his late filing, we would
find that he has not demonstrated good cause because the report itself was published
before the initial decision in this case was issued. Moreover, the appellant has not
shown that the report addresses the factual and legal issues raised by the agency in its
response to his petition for review. See 5 C.F.R. § 1201.114(a)(4). For these reasons,
we have not considered the appellant’s reply.
4
¶6 On review, the appellant argues, as he did below, that res judicata does not
apply to bar his appeal. He reasons that, because the Board lacks jurisdiction
over the termination of Federal Career Interns, there has been no final judgment
on the merits of his claim. PFR File, Tab 1 at 2-3.
¶7 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. Inman v. Department of Veterans Affairs, 115 M.S.P.R.
41, ¶ 13 (2010) (citing 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 of 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.
¶8 Although the Board did find in an earlier case that it lacked jurisdiction
over the appellant’s termination, Bishop v. Department of Homeland Security,
MSPB Docket No. NY-0752-08-0001-I-1, Initial Decision at 1, 6 (Oct. 24,
2007), 4 the instant case is an IRA appeal in which the appellant alleges that the
reason for his termination was his whistleblowing. And, as noted, the Board also
issued a decision on his earlier IRA appeal in which he made the same
allegation. 5 In that initial decision, after finding Board jurisdiction, the
administrative judge found that certain of the appellant’s alleged disclosures were
protected, Bishop v. Department of Homeland Security, MSPB Docket No.
NY 1221-09-0209-W-1, Initial Decision at 11, and that they were contributing
factors in the agency’s decision to terminate him, id. at 12, but that the agency
proved by clear and convincing evidence that it would have terminated the
4
The initial decision became the Board’s final decision when neither party filed a
petition for review.
5
The appellant also alleged in that appeal that the agency denied him on-the-job
training in retaliation for his whistleblowing.
5
appellant in the absence of his disclosures, id. at 12-13. In denying the
appellant’s request for corrective action, id. at 2, 14, the administrative judge
rendered a judgment on the merits of the appellant’s claim that he was terminated
due to his whistleblowing, and that judgment became a final judgment when the
Board denied the appellant’s petition for review of the initial decision. As such,
all three criteria for applying the doctrine of res judicata are therefore met, see
Inman, 115 M.S.P.R. 41, ¶ 13, and we conclude that the administrative judge
properly dismissed this appeal on that basis. 6
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.
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
6
With his petition, the appellant has submitted a Standard Form 50 (SF-50), “approved”
on August 3, 2011, correcting certain items on the SF-50 effecting his August 20, 2007
termination, a letter from the State of New Jersey, Department of Labor and Workforce
Development, in which the date has been redacted, indicating receipt of the appellant’s
request for unemployment compensation, and several documents that appear to show
that he received such compensation from the state. PFR File, Tab 1 at 10-15. Because
the appellant has failed to show that these documents are new or material, we have not
considered them. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980);
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
6
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
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
7
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.