Opinion

Brett Barnhart v. Department of the Army

Court: Merit Systems Protection Board
Filed: Dec 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRETT A. BARNHART, DOCKET NUMBER

Appellant, CH-0752-15-0082-C-2

DEPARTMENT OF THE ARMY, DATE: December 15, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carl Eric Owen, Rupert, Idaho, for the appellant.

Caitlin Breedlove, Rock Island, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a compliance petition for review of the compliance

initial decision, which denied his second petition for enforcement of the

agreement that settled his remanded removal appeal. On petition for review, the

appellant argues that the administrative judge erred in denying his second petition

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

for enforcement. His sole contention on review reiterates his argument that the

agency breached the settlement agreement by failing to purchase required safety

equipment for him and he provides a largely illegible receipt that he contends

demonstrates that he purchased the equipment himself. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

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. 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. Except as

expressly MODIFIED to dismiss the appellant’s claims concerning his safety

equipment and the repayment of interest on the refund of his Federal Employees

Health Benefits (FEHB) premiums on the basis of res judicata, we AFFIRM the

initial decision.

¶2 When an appellant files an appeal that raises claims raised in an earlier

appeal after the initial decision in the earlier appeal has been issued, but before

the full Board has acted on the appellant’s petition for review, it is appropriate to

dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Zgonc

v. Department of Defense, 103 M.S.P.R. 666, ¶ 6 (2006), aff’d per curiam,

230 F. App’x 967 (Fed. Cir. 2007); McNeil v. Department of Defense,

100 M.S.P.R. 146, ¶ 11 (2005). Because the record showed that the appellant had

raised the issues of his safety equipment and the interest due on his refunded

FEHB contributions in his first petition for enforcement and the compliance

petition for review of the compliance initial decision in that matter was still

pending before the full Board at the time that the administrative judge issued the

compliance initial decision in the instant matter, the administrative judge

correctly dismissed those claims on the ground of adjudicatory efficiency.

Barnhart v. Department of the Army, MSPB Docket No. CH-0752-15-0082-C-2,

Compliance File, Tab 8, Compliance Initial Decision at 3-4; Zgonc, 103 M.S.P.R.

666, ¶ 6.

¶3 Nevertheless, the Board has now issued a final decision denying the

appellant’s first petition for enforcement. Barnhart v. Department of the Army,

MSPB Docket No. CH-0752-15-0082-C-1, Final Order (Dec. 15, 2022).

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. Senyszyn v. Department of the Treasury, 113 M.S.P.R. 453, ¶ 9

(2010). Because the final decision on the appellant’s first petition for

enforcement now meets those elements, we modify the initial decision to find that

the appellant’s claims concerning his safety equipment and FEHB premiums are

barred by res judicata. See 5 C.F.R. § 1201.113(b) (explaining that an initial

decision becomes final when the Board denies the petition for review).

NOTICE OF APPEAL RIGHTS 2

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of yo ur case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appe als for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

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

after your representative receives this decision. 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. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the