Opinion

Jacqueline Brown v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Apr 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUELINE BROWN, DOCKET NUMBER

Appellant, SF-1221-22-0006-W-1

DEPARTMENT OF THE AIR FORCE, DATE: April 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Rogers , Esquire, San Antonio, Texas, for the appellant.

Kathryn Price , El Segundo, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her individual right of action (IRA) appeal on the basis of res judicata.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

clarify the basis for res judicata, we AFFIRM the initial decision.

The appellant’s arguments do not provide a basis to disturb the initial decision.

In her petition, the appellant alleges bias on part of the administrative

judge, largely because of agency-favorable rulings and factual findings that he

made in her prior Board IRA appeals. Petition for Review (PFR) File, Tab 1

at 6-8. The appellant also asserts that she has reviewed other cases handled by

the administrative judge, which purportedly show “deep-rooted favoritism

towards agencies.” 2 PFR File, Tab 4 at 5-6. The Board consistently has held

that, in making a claim of bias against an administrative judge, the appellant must

overcome the presumption of honesty and integrity that accompanies all

administrative adjudicators. Washington v. Department of the Interior ,

81 M.S.P.R. 101, ¶ 7 (1999). This presumption can be overcome only by a

substantial showing of personal bias. Williams v. U.S. Postal Service,

To support this assertion, the appellant provides additional documents, i.e., documents

that she received following the issuance of the initial decision in response to a Freedom

of Information Act request that she filed with the Board. PFR File, Tab 4 at 8-10.

These documents, which pertain to the administrative judge’s adjudication of IRA

appeals, are not material to the outcome of this matter. Id.; see Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a

petition for review based on new evidence absent a showing that it is of sufficient

weight to warrant an outcome different from that of the initial decision).

87 M.S.P.R. 313, ¶ 12 (2000). Here, the record is devoid of any indication of

personal bias; thus, the appellant’s assertions are unavailing.

The appellant contends that the administrative judge abused his authority.

PFR File, Tab 1 at 6-7. The appellant’s claims in this regard, however, seemingly

pertain to evidentiary rulings made by the administrative judge in prior Board

appeals for which a final decision has already been issued; thus, they are not

material to the outcome of this matter. Id. To the extent the appellant contends

that these rulings support her claim of bias, we find her contention unavailing.

See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013)

(stating that the Board will not infer bias based on an administrative judge’s

case-related rulings).

The appellant challenges the administrative judge’s denial of her request

that he recuse himself from this matter. PFR File, Tab 1 at 6-7; Initial Appeal

File (IAF), Tab 9 at 13-14, Tab 17 at 1. We discern no basis to disturb the

administrative judge’s denial order; indeed, as set forth therein, the appellant’s

request failed to comport with 5 C.F.R. § 1201.42, which required her (1) to file

her request as soon as she had reason to believe that there was a basis for

disqualification and (2) to provide the reasons for her recusal request in an

affidavit or sworn statement under 28 U.S.C. § 1746. IAF, Tab 17 at 1; see

5 C.F.R. § 1201.42(b). Moreover, the appellant did not seek interlocutory review

of the administrative judge’s denial of her request. See 5 C.F.R. § 1201.42(c)

(stating that, if an administrative judge denies a request for withdrawal, the party

seeking withdrawal may request certification of the issue to the Board as an

interlocutory appeal and that failure to request certification is considered a waiver

of the withdrawal request). Thus, the appellant’s challenge is unavailing.

We modify the initial decision to clarify the basis for res judicata.

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

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).

Here, we agree with the administrative judge’s conclusion that the instant

appeal is barred by res judicata; however, we take this opportunity to clarify the

basis for this conclusion. IAF, Tab 26, Initial Decision at 33. In the instant

appeal, the appellant has not raised any personnel actions that she could not have

raised in a prior Board IRA appeal for which a final judgment on the merits has

already been issued. See Peartree, 66 M.S.P.R. at 337 (explaining that res

judicata precludes parties from relitigating issues that were, or could have been,

raised in the prior action). Indeed, the appellant had previously exhausted all of

the personnel actions at issue with the Office of Special Counsel; however, she

elected to challenge only one of these actions in her prior Board appeal. Brown v.

Department of the Air Force, MSPB Docket No. SF-1221-19-0481-W-1, Initial

Appeal File, Tab 1 at 19-35, Tab 18 at 7; IAF, Tab 9 at 20. She may not now

reexhaust these personnel actions and attempt to litigate them under new legal

theories. See Inman v. Department of Veterans Affairs, 115 M.S.P.R. 41, ¶ 15

(2010) (identifying personnel actions as the “cause of action” for purposes of

applying res judicata to an IRA appeal); see also Sabersky v. Department of

Justice, 91 M.S.P.R. 210, ¶¶ 7-8 (2002) (explaining that res judicata bars an

appellant from challenging a cause of action under a new legal theory). Thus,

although we agree that this appeal should be dismissed on the basis of res

judicata, we clarify the reason therefor.

NOTICE OF APPEAL RIGHTS 3

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 and

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).

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:

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.

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. 420 (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. 4 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