The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEWIS MOSS, DOCKET NUMBER
Appellant, DC-0752-17-0189-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lewis Moss, Kaiserslautern, Germany, pro se.
Sally R. Bacon, Esquire, Fort Lee, Virginia, 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 petition for review of the January 19, 2017 initial
decision, which dismissed his appeal of an alleged involuntary retirement as
barred by the doctrine of res judicata. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 by this Final Order to address the appellant’s claim regarding an
alleged performance-based removal, we AFFIRM the initial decision.
BACKGROUND
¶2 Before filing the above-captioned appeal, the appellant filed a Board appeal
in August 2009 of his removal from the Quality Control Handler Leader position,
effective July 31, 2009. Moss v. Department of Defense, MSPB Docket No. DC-
0752-09-0823-I-1, Initial Decision (0823 ID) at 1 (Dec. 30, 2009); Moss v.
Department of Defense, MSPB Docket No. DC-0752-17-0189-I-1, Initial Appeal
File (IAF), Tab 5 at 9. He disputed the agency’s charge of misconduct and raised
claims of harmful error, a violation of his due process rights, and retaliation for
whistleblowing. 0823 ID at 4. After holding a hearing, the administrative judge
assigned to the appellant’s removal appeal issued an initial decision in
December 2009 that affirmed the agency’s removal action. 0823 ID at 1, 26. The
appellant filed a petition for review, which the full Board denied in a Final Order
issued in July 2010. Moss v. Department of Defense, MSPB Docket No. DC-
0752-09-0823-I-1, Final Order (0823 Final Order) at 1-2 (July 27, 2010).
3
¶3 In December 2016, the appellant filed the instant appeal of an alleged
involuntary retirement and he did not request a hearing. IAF, Tab 1. In an Order
to Show Cause, the administrative judge informed the appellant that his appeal
may be barred by the doctrines of res judicata or collateral estoppel based on his
prior removal appeal, apprised him of the elements and burden of proof regarding
the doctrines, and ordered him to respond on the applicability of the doctrines.
IAF, Tab 2. The appellant responded and provided, among other things, evidence
that he had filed multiple complaints with the Office of Special Counsel (OSC).
IAF, Tabs 5-11. The agency moved to dismiss the appeal. IAF, Tab 12. The
appellant responded in opposition and filed additional argument and evidence .
IAF, Tabs 13-16.
¶4 Based on the written record, the administrative judge issued an initial
decision on January 19, 2017, which dismissed the instant appeal as barred by res
judicata. IAF, Tab 17, Initial Decision (0189 ID) at 1, 6. Specifically, he found
that the elements required for the application of res judicata have been met.
0189 ID at 3-6. He further found that the appellant’s evidence of OSC close-out
notices and submissions filed in response to the agency’s motion to dismiss did
not affect the disposition of the appeal. 0189 ID at 2 nn.1-2.
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s involuntary retirement claim is barred by res judicata.
¶6 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. 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 with competent jurisdiction, (2) the prior judgment was
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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. For res judicata
purposes, a cause of action is the set of facts that gives an appellant the right to
seek relief from an agency. Jennings v. Social Security Administration,
123 M.S.P.R. 577, ¶ 25 (2016).
¶7 For the following reasons, we agree with the administrative judge’s finding
that the criterion for res judicata has been met. 0189 ID at 3-6. A removal is an
adverse action subject to the Board’s jurisdiction. See 5 U.S.C. §§ 7512(1),
7513(d), 7701(a). Moreover, the parties have not disputed on review, and we find
no reason to disturb, the administrative judge’s findings that the appellant is an
employee with Board appeal rights under 5 U.S.C. chapter 75 and that the same
parties were involved in both the prior and present appeals. 0189 ID at 3-4; PFR
File, Tab 1. Thus, we agree that the Board had jurisdiction over the appellant’s
prior removal appeal, which resulted in a final judgment on the merits.
0823 Final Order at 2; 0823 ID at 1, 26; 0189 ID at 4; see 5 C.F.R. § 1201.113(b)
(providing that an initial decision becomes final when the Board issues its last
decision denying a petition for review).
¶8 We further agree with the administrative judge’s finding that both the prior
and present appeals involved the same cause of action because they were based on
the same set of facts, i.e., the agency’s removal action in July 2009. 0189 ID
at 4. In the instant appeal, the appellant claimed that he suffered an involuntary
retirement based on “misleading statements,” “lies,” and “reprisals” by three
agency employees. IAF, Tab 1 at 4-6. He specifically alleged errors in the
agency’s notice of proposed removal and decision letter and errors in the
adjudication of his prior removal appeal. Id. An involuntary retirement claim
may be appealable to the Board as a constructive removal under 5 U.S.C.
chapter 75. See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17
(2007) (observing that an involuntary retirement is tantamount to a removal and
thus subject to the Board’s jurisdiction); see also Bean v. U.S. Postal Service,
5
120 M.S.P.R. 397, ¶ 7 (2013) (explaining that the Board may have jurisdiction
over certain employee-initiated actions under 5 U.S.C. chapter 75 as
“constructive” adverse actions). Because the appellant based his prior appeal on
his July 2009 removal, we find that his present attempt to appeal an alleged
involuntary retirement as a constructive removal is based on the same cause of
action. See Townes v. U.S. Postal Service, 99 M.S.P.R. 350, ¶ 8 (2005) (finding
that, when the appellant was approved for disability retirement after he was
removed, his claim of an involuntary disability retirement should have been
considered an appeal of his removal); see also Williams v. Department of Health
and Human Services, 112 M.S.P.R. 628, ¶¶ 7-8 (2009) (finding that, when the
appellant retired on the effective date of her removal, it was error for the
administrative judge to adjudicate the appellant’s involuntary retirement claim as
a matter distinct from her removal).
¶9 Therefore, we find that the administrative judge properly applied res
judicata to bar any claims that the appellant had raised, or could have raised, in
his prior removal appeal. 0189 ID at 5-6; see Peartree, 66 M.S.P.R. at 337; see
also Jennings, 123 M.S.P.R. 577, ¶ 25 (affirming the administrative law judge’s
finding that res judicata does not require that the prior decision expressly address
a particular claim on the merits, even if that claim had been properly raised) .
Moreover, we agree with the administrative judge’s conclusion that the
appellant’s allegation regarding errors in the adjudication of his prior removal
appeal does not preclude the application of res judicata. 0189 ID at 5.
¶10 In his petition for review, the appellant challenges the dismissal of his
appeal based on res judicata. First, the appellant reasserts his argument that, in
his prior appeal, the Board did not adjudicate his alleged “removal” on June 12,
2008, for unacceptable performance. PFR File, Tab 1 at 4-6, 9; IAF, Tab 13
at 4-5, Tab 15 at 4-5. He further argues that his alleged performance-based
removal violated 5 U.S.C. §§ 2301(b)(9) and 2302(b)(12). PFR File, Tab 1 at 6.
We modify the initial decision to address this argument. Based on the appellant’s
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submissions, it seems that the agency relieved him of some of his duties on
June 12, 2008, and there is no indication that he suffered a performance-based
removal. IAF, Tab 10 at 11, Tab 15 at 10-11; see 5 C.F.R. § 432.103(f) (defining
“removal” as “the involuntary separation of an employee from employment with
an agency”). Moreover, the appellant submitted evidence that he raised his
change in duties as a potentially retaliatory personnel action in his prior removal
appeal and before OSC. IAF, Tab 9 at 4, 7, 15, Tab 13 at 22; see Moss v.
Department of Defense, MSPB Docket No. DC-0752-09-0823-I-1, Initial Appeal
File, Tab 9 at 16.
¶11 We find that the appellant’s claim regarding an alleged performance -based
removal fails to provide a reason to disturb the initial decision. Even if his claim
was not litigated in his prior removal appeal, it does not preclude the application
of res judicata in the present appeal. Further, merit system principles under
5 U.S.C. § 2301 and prohibited personnel practices under section 2302(b) are not
independent sources of Board jurisdiction. Davis v. Department of Defense,
105 M.S.P.R. 604, ¶ 15 (2007); Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). In addition, a change in
duties without a reduction in grade is not an independently appealable action
under 5 U.S.C. chapter 43 or 75. See 5 U.S.C. §§ 4303(e), 7512, 7513(d).
However, it may constitute a personnel action upon which an individual right of
action (IRA) appeal may be based. 2 See 5 U.S.C. §§ 1221(a), 2302(a)(2)(A). If
2
Before it was amended in 2012, the Whistleblower Protection Act of 1989 (WPA),
Pub. L. No. 101-12, 103 Stat. 16, afforded certain Federal employees the right to bring
an IRA appeal when an agency engaged in any of the prohibited personnel practices
described in 5 U.S.C. § 2302(b)(8). Hicks v. Merit Systems Protection Board, 819 F.3d
1318, 1320 (Fed. Cir. 2016). Effective December 27, 2012, the Whistleblower
Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, expanded
the IRA appeal right provided by the WPA to include claims for corrective action based
on the prohibited personnel practices described in sections 2302(b)(9)(A)(i), (B), (C),
and (D). See Hicks, 819 F.3d at 1320. Before seeking corrective action from the Board
through an IRA appeal, however, an employee must first seek corrective action from
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the appellant chooses to file an IRA appeal, we express no opinion on whether
such an appeal would be within the Board’s jurisdiction or be precluded by the
doctrines of res judicata or collateral estoppel. 3
¶12 Next, the appellant asserts on review that he did not have an opportunity in
the prior removal appeal to litigate claims related to his July 2009 removal of
ex parte communications, harmful error, and prohibited personnel practices. PFR
File, Tab 1 at 7, 10-12. We find that the appellant’s claims regarding his removal
do not preclude the application of res judicata. Moreover, he has not explained
why he could not have raised claims of ex parte communications, harmful error,
and prohibited personnel practices in the prior removal appeal when he was able
to file a petition for review of that appeal. Thus, we find that these claims are
precluded by res judicata. See Peartree, 66 M.S.P.R. at 337.
¶13 Further, the appellant alleges that the agency violated statutory and
regulatory procedures in proposing and deciding to suspend him multiple times
for 14 days or less. PFR File, Tab 1 at 9; IAF, Tab 5 at 19-20, Tab 13 at 22. The
record contains evidence that he raised these suspensions as potentially retaliatory
personnel actions in his prior removal appeal. IAF, Tab 13 at 22. We find that
the appellant’s argument regarding his suspensions does not preclude the
application of res judicata in the present appeal. Moreover, a suspension of
OSC. 5 U.S.C. § 1214(a)(3); see Miller v. Federal Deposit Insurance Corporation,
122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015).
3
The appellant has filed three prior IRA appeals. See Moss v. Department of Defense,
MSPB Docket No. DC-1221-13-0151-W-2, Final Order, ¶¶ 9-13 (Aug. 26, 2022)
(denying the appellant’s request for corrective action); Moss v. Department of Defense,
MSPB Docket No. DC-1221-14-0567-W-1, Final Order, ¶¶ 1, 3-4 (Nov. 5, 2014)
(affirming the administrative judge’s finding that the Board lacked jurisdiction over the
appellant’s claim of reprisal for filing an equal employment opportunity complaint);
Moss v. Department of Defense, MSPB Docket No. DC-1221-12-0192-W-1, Final Order
at 2-3 (June 22, 2012) (affirming the administrative judge’s finding that the Board
lacked jurisdiction over the IRA appeal because the appellant failed to show that he
exhausted his administrative remedy with OSC).
8
14 days or less is not an independently appealable action. Lefavor v. Department
of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); see 5 U.S.C. §§ 7512(2), 7513(d).
¶14 In addition, the appellant disputes the administrative judge’s finding that
the appellant’s submission of OSC close-out notices did not affect the disposition
of the instant appeal. PFR File, Tab 1 at 8; 0189 ID at 2 n.1. The appellant
further argues that the administrative judge failed to adjudicate his whistleblower
reprisal claim. PFR File, Tab 1 at 8. We note that the administrative judge
assigned to the appellant’s prior removal appeal adjudicated his claim that he was
removed in reprisal for whistleblowing. 0823 ID at 18-24. Moreover, the
appellant is barred from relitigating reprisal claims that he raised, or could have
raised, in his prior removal appeal. See Peartree, 66 M.S.P.R. at 337. To the
extent the appellant is raising claims of retaliation unrelated to his July 2009
removal, he may have a right to file a separate IRA appeal, as described above.
¶15 Finally, the appellant disputes the administrative judge’s finding that the
appellant filed submissions past the close-of-record date that were not in response
to the agency’s new argument or evidence. PFR File, Tab 1 at 8 -9; 0189 ID at 2
n.2. It appears that the appellant filed his submissions in accordance with the
administrative judge’s instructions. IAF, Tab 2 at 3; see 5 C.F.R. § 1201.59(c).
However, because the administrative judge accepted the appellant’s submissions
into the record and considered them, we find that his substantive rights have not
been harmed. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (holding that the administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights).
¶16 Accordingly, we affirm the dismissal of this appeal based on res judicata.
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NOTICE OF APPEAL RIGHTS 4
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
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 your 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).
4
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.
10
If you submit a petition for review to the U.S. Court of Appeals 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 ou r 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
11
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
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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. 5 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
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
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.