FORD-CLIFTON v. Department of Veterans Affairs

United States Court of Appeals

for the Federal Circuit

__________________________

KIMBERLY A. FORD-CLIFTON,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

__________________________

2011-3103

__________________________

Petition for review of the Merit Systems Protection

Board in consolidated case Nos. CH0752090381-C-1 and

CH0752090381-I-1.

___________________________

Decided: October 19, 2011

___________________________

KIMBERLY A. FORD-CLIFTON, of Chicago, Illinois, pro

se.

J. HUNTER BENNETT, Trial Attorney, Commercial Liti-

gation Branch, Civil Division, United States Department

of Justice, of Washington, DC, for respondent. With him

on the brief were TONY WEST, Assistant Attorney General,

JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,

JR., Assistant Director.

__________________________

FORD-CLIFTON v. VA 2

Before RADER, Chief Judge, O’MALLEY, and REYNA,

Circuit Judges.

REYNA, Circuit Judge.

Petitioner, Kimberly A. Ford-Clifton, seeks review of a

January 26, 2011 final determination of the Merit Sys-

tems Protection Board (“the Board”) that: (1) dismissed as

untimely her petition for review of the decision issued

March 26, 2009; and (2) affirmed the initial decision of the

administrative judge (“AJ”) dismissing her November 9,

2009 appeal. See Ford-Clifton v. Dep’t of Veterans Affairs,

MSPB Docket Nos. CH0752090381-C-1 and

CH0752090381-I-1 (Jan. 26, 2011). We affirm.

I. Background

On January 23, 2009, the Department of Veterans Af-

fairs (“DVA”) removed Petitioner from her position as a

Program Support Assistant in Chicago, Illinois. Peti-

tioner had previously been employed by the federal gov-

ernment for nearly thirty years, mostly with the DVA. In

a letter to the Board dated October 11, 2010, Petitioner

claimed that “stressful encounters with my department

began in May of 2008 and were ongoing until my dis-

charge in 2009.” A30.

During the period leading up to her removal, Peti-

tioner had documented mental and physical challenges.

Specifically, on August 12, 2008, she admitted herself to

the emergency room complaining of stress and feelings of

helplessness. She was discharged with a diagnosis of

depression and high blood pressure. Petitioner again

sought medical attention on September 5, 2008, and was

prescribed Effexor to treat her depression.

Following her removal from the DVA in early 2009,

Petitioner timely appealed. Shortly thereafter, on March

19, 2009, the parties entered into a settlement agreement

3 FORD-CLIFTON v. VA

(“the Agreement”) wherein the Petitioner agreed to volun-

tarily withdraw her appeal and forego all claims against

the DVA arising before that date. The Agreement sought

to fully resolve the matter, providing in pertinent part

that:

Appellant . . . will withdraw any actions Appellant

has pending against the DVA . . . and . . . waive

any and all actions, claims, complaints, griev-

ances, appeals and proceedings of whatever na-

ture in any forum, actual or potential, which

relate to or concern any conduct or act occurring

prior to the execution of this Agreement.

A7.

The parties notified the Board that they had settled.

The AJ found that the Agreement appeared lawful on its

face, was entered into freely by both parties, and repre-

sented a full and complete settlement of all issues. With

no matters remaining for adjudication, the AJ dismissed

the appeal as settled on March 26, 2009, entering the

Agreement into the record for enforcement purposes. The

AJ’s initial decision became final on April 30, 2009, as

clearly indicated:

This initial decision will become final on April 30,

2009, unless a petition for review is filed by that

date or the Board reopens the case on its own mo-

tion. This is an important date because it is usu-

ally the last day on which you can file a petition

for review with the Board. . . . These instructions

are important because if you wish to file a peti-

tion, you must file it within the proper time pe-

riod.

A17 (emphasis in original). No petition for review was

timely filed.

FORD-CLIFTON v. VA 4

On November 9, 2009, Petitioner filed a new appeal

seeking to be placed in her former position at the DVA.

The basis for this second appeal, however, was unclear.

The appeal was docketed as a petition to enforce the

Agreement, but Petitioner did not allege that the DVA

failed to comply with its terms. Instead, the new appeal

reargued the merits of the removal.

On March 19, 2010, the AJ issued an initial decision

dismissing the appeal on three grounds: (1) if the new

appeal was intended to enforce the Agreement, then

dismissal without prejudice was appropriate because

Petitioner did not claim that the DVA was not in compli-

ance; (2) if the new appeal was to relitigate the merits of

the removal itself, then dismissal was appropriate be-

cause the Petitioner’s subsequent claims were barred

under principles of res judicata given the express resolu-

tion of all issues by the Agreement and the entry of final

judgment; and (3) if the appeal was claiming that the

Agreement was illegal or improperly entered, those alle-

gations should have been filed at the Board’s headquar-

ters as a petition for review. 1

On April 17, 2010, Petitioner filed a petition for re-

view with the Board headquarters, indicating the docket

number and finality date of the AJ’s recent dismissal. As

a petition to review the March 19, 2010 dismissal, the

request was timely. But the Clerk of the Board deemed

that the April 17, 2010 filing could also be construed as a

petition for review of the original March 26, 2009 decision

that dismissed the case in the first instance, making the

filing almost a year late. The Clerk of the Board re-

1 In a footnote addressing the final point, the

AJ indicated that because it was unclear whether Peti-

tioner intended the appeal to be a petition for review, he

did not refer it to the Board headquarters for considera-

tion. A24 n4.

5 FORD-CLIFTON v. VA

quested additional materials from Petitioner to support a

showing of good cause for her untimely filing. Petitioner

subsequently filed a motion to waive the time limit,

attaching supporting documentation.

The Board, unable to determine the basis for the April

17, 2010 petition, ruled against Petitioner as to both

possibilities. See Ford-Clifton v. Dep’t of Veterans Affairs,

MSPB Docket Nos. CH0752090381-C-1 and

CH0752090381-I-1, at 1-2 (Jan. 26, 2011).

First, the Board found that “[t]o the extent the appel-

lant means to challenge the March 26, 2009 initial deci-

sion, we dismiss her petition for review as untimely filed

without a showing of good cause for the delay in filing.”

Id. at 2. At over eleven months, the Board found that the

period of filing delay in this case was “significant.” Id. at

5. To establish that such a significant delay was the

result of illness, Petitioner submitted evidence of her

hospital visits for depression in August and September of

2008, as well as documentation suggesting that she took

Coumadin to treat deep vein thrombosis as late as No-

vember of 2009. Assessing this medical evidence, the

Board determined that Petitioner’s 2008 depression

treatment pre-dated the relevant period of delay and did

not support a showing of good cause. As the Board ex-

plained: “Absent from the record . . . is any evidence that

the appellant suffered from depression during the period

between the issuance of the initial decision on March 26,

2009, and the filing of the petition for review . . . .” Id. at

6. As for her Coumadin therapy for blood clots which

occurred during the relevant timeframe, the Board found

that Petitioner “ha[d] not explained how that medical

condition would have impaired her ability to file a timely

petition for review or request an extension of the time to

file.” Id. The Board also considered, but rejected, Peti-

tioner’s claim that financial hardship and pro se status

FORD-CLIFTON v. VA 6

justified the delay. Id. As such, the Board found that

Petitioner failed to show good cause for the lengthy filing

delay and dismissed the new appeal to the extent it

sought untimely review of the March 26, 2009 initial

decision. Id. at 6-7.

Second, the Board determined that “[i]nsofar as the

appellant is petitioning for review of the March 19, 2010

initial decision, . . . we conclude that there is no new,

previously unavailable, evidence and that the administra-

tive judge made no error in law or regulation that affects

the outcome.” Id. at 7. Accordingly, the Board denied the

petition for review, but reopened the appeal on its own

initiative to clarify the grounds for its holding. The Board

decided that the AJ improperly identified res judicata as

the basis for the March 19, 2010 dismissal of Petitioner’s

second appeal. The Board stated that, “[w]hen the merits

of an agency action are not examined . . . the doctrine of

res judicata is inapplicable.” Id. The Board held instead

that “the law of the case doctrine” prevented the appellant

from relitigating her original removal claim, which was

fully resolved by the Agreement. Id. at 8. Hence, the

Board affirmed the dismissal of March 19, 2010, but on

the basis of the law of the case doctrine. Id. at 7-8.

Petitioner timely appealed to this court. We have juris-

diction pursuant to 28 U.S.C. § 1295(a)(9).

II. Discussion

Because the Board dismissed on two separate

grounds, we address each in turn. We affirm a decision of

the Board unless it is found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law; obtained without procedures required by law, rule, or

regulation having been followed; or unsupported by

substantial evidence. 5 U.S.C. § 7703(c).

7 FORD-CLIFTON v. VA

A. Good Cause Was Not Shown

To demonstrate on appeal that the Board abused its

discretion in not waiving the filing deadline for a petition

for review, Petitioner bears a “heavy burden.” Zamot v.

Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).

The Board is afforded considerable discretion in such

analyses. Id.; Mendoza v. Merit Sys. Prot. Bd., 966 F.2d

650, 653 (Fed. Cir. 1992) (en banc) (“[W]hether the regu-

latory time limit for an appeal should be waived based

upon a showing of good cause is a matter committed to

the Board’s discretion and this court will not substitute

its own judgment for that of the Board.”).

Board regulations require petitioners to file “[a] spe-

cific and detailed description of the circumstances causing

the late filing, accompanied by supporting documentation

or other evidence.” 5 C.F.R. § 1201.114(f)(2). The Board

has held that when petitioners allege delay for medical

reasons, they must affirmatively identify medical evi-

dence that addresses the entire period of delay and ex-

plain how the illness prevented a timely filing. Jerusalem

v. Dep’t of the Air Force, 107 M.S.P.R. 660, 663, aff’d, 280

F. App’x 973 (Fed. Cir. 2008); see also Lacy v. Dep’t of the

Navy, 78 M.S.P.R. 434, 437 (1998).

The Board’s determination that Petitioner’s medical

evidence failed to show good cause based on illness was

reasonable and supported by substantial evidence. Peti-

tioner contends that the delay was the result of depres-

sion and deep vein thrombosis, but did not provide

evidence of a medical condition that prevented a timely

filing between April 30, 2009 and April 17, 2010—the

entire period of delay. The record evidence describing

Petitioner’s depression is limited to episodes occurring in

mid-2008, many months prior to the relevant period. The

only medical evidence actually dated from within the

FORD-CLIFTON v. VA 8

period of delay was for deep vein thrombosis; but, as the

Board properly found, there is no accompanying explana-

tion of how this condition prevented a timely filing.

Nor did the Board err in rejecting the other non-

medical excuses raised. Relying upon established prece-

dent, the Board properly held that neither alleged finan-

cial hardship nor inability to engage counsel establish

good cause for delay. See Uson v. Office of Pers. Mgmt.,

105 M.S.P.R. 402, 403, aff’d, 250 F. App’x 326 (Fed. Cir.

2007); Melville v. Dep’t of the Air Force, 99 M.S.P.R. 233,

234 (2005). We therefore affirm the Board’s determina-

tion that good cause was not shown to excuse Petitioner’s

filing delay of more than eleven months.

B. The Agreement Requires Dismissal

The Board found error in applying res judicata to

dismiss Petitioner’s November 9, 2009 appeal because the

AJ had not examined the underlying merits of the DVA

removal in his prior decision. Rather, the Board held that

the legal doctrine preventing Petitioner’s new appeal was

“the law of the case doctrine.” Under this doctrine,

“[i]ssues decided at an earlier stage of litigation, either

explicitly or by necessary inference from the disposition,

constitute the law of the case.” Kori Corp. v. Wilco Marsh

Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir.

1985) (citation omitted). The Board dismissed Petitioner’s

second appeal based on this doctrine, relying on the terms

of the Agreement.

We affirm the Board’s final decision dismissing the

November 9, 2009 appeal, but we find that the law of the

case doctrine is not the correct analysis to employ here.

The Board has sometimes refused to apply res judicata

where a prior dispute was dismissed pursuant to settle-

ment agreement, maintaining that such resolutions do

not reach the merits and cannot have preclusive effect.

9 FORD-CLIFTON v. VA

See Vargo v. USPS, 62 M.S.P.R. 156, 159 (1994). The

Board has relied instead on the law of the case doctrine to

prevent relitigation of settled matters. Id. As explained

below, we look with disfavor on the use of the law of the

case doctrine by administrative agencies when a final

order dismissing a case was earlier made on the basis of a

settlement agreement. 2 In such circumstances, a subse-

quent appeal is barred by res judicata.

Pursuant to the doctrine of res judicata, a final judg-

ment on the merits bars a second action involving the

same parties and the same claim. See Parklane Hosiery

Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Carson v. Dep’t

of Energy, 398 F.3d 1369, 1374-75 (Fed. Cir. 2005); see

also Wade v. Dep’t of the Air Force, 70 M.S.P.R. 396, 399

(1996), aff’d, 104 F.3d 375 (Fed. Cir. 1996). It is widely

agreed that an earlier dismissal based on a settlement

agreement constitutes a final judgment on the merits in a

res judicata analysis. See Epic Metals Corp. v. H.H.

Robertson Co., 870 F.2d 1574, 1576 (Fed. Cir. 1989), cert.

2 Some appellate courts have questioned

whether the law of the case doctrine is available to agen-

cies at all. See, e.g., Biltmore Forest Broad. FM, Inc. v.

Fed. Commc’ns Comm’n, 321 F.3d 155, 163 (D.C. Cir.

2003) (“For the record, we note also that the law of the

case doctrine is of uncertain force in the context of admin-

istrative litigation.”); Lockert v. Dep’t of Labor, 867 F.2d

513, 518 (9th Cir. 1989) (“[I]t is doubtful that federal

courts have the authority to extend the law of the case

doctrine to proceedings involving non-judicial decision-

makers, such as the ALJ and the Secretary. Law of the

case doctrine is purely judge made; in the absence of

statutory guidance, it makes sense for judges to develop

doctrines to help manage efficiently their own affairs.

The basis for extending this doctrine beyond ‘judicial

affairs,’ however, is far from certain.”); see also Bath Iron

Works v. Brown, 194 F.3d 1, 4 n.3 (1st Cir. 1999) (citing

Lockert, 867 F.2d at 517-18).

FORD-CLIFTON v. VA 10

denied, 493 U.S. 855 (1989) (construing Third Circuit law

and stating that under “principles of res judicata . . .

consent judgments have the same force and effect as

judgments entered after a trial on the merits”); see also

Larken, Inc. v. Wray, 189 F.3d 729, 732 (8th Cir. 1999)

(“When the parties to a previous lawsuit agree to dismiss

a claim with prejudice, such a dismissal constitutes a

‘final judgment on the merits’ for purposes of res judi-

cata.”); Chase Manhattan Bank, N.A. v. Celotex Corp., 56

F.3d 343, 345 (2d Cir. 1995) (“A voluntary dismissal with

prejudice is an adjudication on the merits for purposes of

res judicata.”); Langton v. Hogan, 71 F.3d 930, 935 (1st

Cir. 1995) (“A judgment that is entered with prejudice

under the terms of a settlement, whether by stipulated

dismissal, a consent judgment, or a confession of judg-

ment, is not subject to collateral attack by a party or a

person in privity, and it bars a second suit on the same

claim or cause of action.”). For res judicata purposes,

therefore, consent judgments entered pursuant to settle-

ment agreements have the same effect as judgments after

a trial on the merits. Hallco Mfg. Co. v. Foster, 256 F.3d

1290, 1294-95 (Fed. Cir. 2001); see also Pactiv Corp. v.

Dow Chem. Co., 449 F.3d 1227, 1230 (Fed. Cir. 2006) (“A

dismissal with prejudice is a judgment on the merits for

purposes of claim preclusion.”).

The record establishes that the Agreement was lawful

and “a full and complete settlement of all issues in the

appeal.” A17. The AJ entered it into the record, dismiss-

ing the case on March 26, 2009. That decision became

final April 30, 2009. Upon Petitioner’s subsequent ap-

peal, the AJ confronted the same parties and the same

claims as in the original suit, namely, Ms. Ford-Clifton

challenging her January 23, 2009 removal by the DVA.

Since the AJ’s earlier dismissal based on the Agreement

resolved all issues regarding Petitioner’s removal, that

11 FORD-CLIFTON v. VA

decision is a final judgment on the merits for res judicata

purposes. Hallco, 256 F.3d at 1294-95. The AJ thus

properly found the second appeal barred by res judicata,

and dismissal was appropriate on that ground. See Sulli-

van v. Dep’t of Justice, 282 F. App’x 828, 830 (Fed. Cir.

2008) (affirming dismissal on res judicata grounds be-

cause the “petition arose from the same event Mr. Sulli-

van previously challenged and eventually settled . . . .”);

cf. Fletcher v. USPS, No. SF-0353-08-0383-I-1, 2008

MSPB LEXIS 3404, at *4, rev. denied, 110 M.S.P.R. 151

(2008) (“It is well-settled that, where a party requests a

voluntary dismissal of his appeal with an affirmative

expression of the intent to abandon the appeal, the dis-

missal will be considered to be ‘with prejudice.’ Under

such circumstances, the dismissal is considered final, and

relitigation of such appeal is barred by res judicata.”).

We also believe that the AJ’s dismissal, in addition to

res judicata, could be characterized in terms of waiver.

See Mannion v. Dep’t of Treasury, No. 2011-3089, 2011

U.S. App. LEXIS 14215, at *2-6 (Fed. Cir. July 11, 2011)

(affirming the Board’s decision that the petitioner could

not reinstate or reopen her appeal because she entered

into a settlement agreement wherein she voluntarily

waived “any and all rights to file, pursue or litigate in any

forum, including . . . the MSPB . . . any and all” of her

claims). By the Agreement’s express terms, Petitioner

withdrew any pending action and waived all additional

claims, grievances, and proceedings arising from her DVA

removal. Since the March 26, 2009 decision was based on

the Agreement, which fully and completely resolved this

matter, we affirm the Board’s determination on this

ground as well.

FORD-CLIFTON v. VA 12

III. Conclusion

Because Petitioner failed to show good cause for her

untimely filing of the November 9, 2009 appeal and

because the March 26, 2009 decision implementing the

Agreement operates as a res judicata bar, we affirm.

AFFIRMED

COSTS

No costs.