The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES FRANCIS FITZPATRICK, DOCKET NUMBER
Appellant, NY-1221-19-0126-W-1
v.
DEPARTMENT OF HOMELAND DATE: May 29, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Neal Rosenberg , Esquire, New York, New York, for the appellant.
Daniel Piccaluga , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal, finding that it was barred
by the doctrine of res judicata. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND this
appeal to the New York Field Office for jurisdictional notice and an opportunity
to provide evidence and argument on the issue of Board jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant began his term appointment with the agency as a General
Schedule, grade 7, Miscellaneous Assistant on July 22, 2018. 1 Fitzpatrick v.
Department of Homeland Security, MSPB Docket No. NY-1221-19-0126-W-1,
Initial Appeal File (0126 IAF), Tab 17 at 36-38. The appellant’s term
appointment was subject to the satisfactory completion of a 1 -year probationary
period. Id. at 36. Effective October 13, 2018, the agency terminated the
appellant during his probationary period for post -appointment reasons related to
his conduct and work performance. Id. at 17-22.
On October 21, 2018, the appellant filed an appeal with the Board
contesting his probationary termination. Fitzpatrick v. Department of Homeland
Security, MSPB Docket No. NY-315H-19-0019-I-1 (Fitzpatrick I). The appellant
withdrew his appeal, and the administrative judge subsequently dismissed
Fitzpatrick I with prejudice. Fitzpatrick I, Initial Decision at 1-3 (Nov. 14,
2018). The appellant then filed a petition for review with the Board in
Fitzpatrick I. The Board issued a final order affirming the initial decision in
Fitzpatrick I that dismissed the appeal as withdrawn. Fitzpatrick I, Final Order
at 1-3 (Feb. 20, 2024).
Subsequent to Fitzpatrick I being dismissed by the administrative judge,
the appellant filed an IRA appeal with the Board, alleging that in reprisal for
being a whistleblower, the agency terminated him during his probationary period.
Fitzpatrick v. Department of Homeland Security, MSPB Docket No. NY-1221-19-
0098-W-1 (Fitzpatrick II). The administrative judge dismissed Fitzpatrick II,
finding that the appeal was barred by res judicata based on the initial decision in
Fitzpatrick I that dismissed with prejudice the appellant’s Board appeal of his
probationary termination. Fitzpatrick II, Initial Decision at 1-5 (Apr. 4, 2019).
1
The appellant’s position title is referred to as a Sighted Assistant in some documents,
but a Standard Form 50 in the record and his termination letter refer to the position as a
Miscellaneous Assistant. Fitzpatrick v. Department of Homeland Security, MSPB
Docket No. NY-1221-19-0126-W-1, Initial Appeal File, Tab 17 at 17, 36, 48.
3
The administrative judge further held that notwithstanding her finding that the
appeal was barred by res judicata, the appellant failed to satisfy his burden of
proving that he exhausted administrative remedies with the Office of Special
Counsel (OSC) before pursuing his IRA appeal in Fitzpatrick II. Id. at 3-4. The
appellant then filed a petition for review in Fitzpatrick II. The Board issued a
final order in Fitzpatrick II, vacating the portion of the initial decision barring the
appeal on res judicata grounds, and dismissing the appeal for lack of Board
jurisdiction because the appellant failed to prove that he exhausted administrative
remedies with OSC. Fitzpatrick II, Final Order at 1-7 (May 24, 2024).
During the pendency of his petitions for review in Fitzpatrick I and II, the
appellant filed this IRA appeal with the Board, again alleging that his
probationary termination was taken by the agency in reprisal for him being a
whistleblower. 0126 IAF, Tab 1, Tab 7 at 4 (pleading filed by the appellant
clarifying that he seeks the Board to rule on the “whistleblowing aspect” through
this appeal). The administrative judge advised the appellant that this appeal
appeared to be barred by the doctrine of res judicata, and provided him with the
opportunity to demonstrate why his appeal should be permitted to move forward.
0126 IAF, Tab 15. After the appellant responded, the administrative judge issued
an initial decision, dismissing this appeal based on res judicata. 0126 IAF,
Tabs 17-18, Tab 19, Initial Decision (ID) at 1-5. The appellant then filed a
petition for review, to which the agency filed a response and the appellant filed a
reply. 2 Petition for Review (PFR) File, Tabs 1, 7, 8.
2
Subsequent to the filing of his petition for review in this case, the appellant filed a
motion with the Board seeking permission to file an additional pleading. Petition for
Review (PFR) File, Tab 4. At this stage of adjudication, the Board’s regulations
generally do not provide for pleadings beyond a petition for review, a cross petition for
review, a response to a petition or cross petition for review, and a reply to a response to
a petition for review. 5 C.F.R. § 1201.114(a)(5). For the Board to consider an
additional pleading, the party must seek leave and describe the nature of and need for it.
Id. We DENY the appellant’s motion, as he did not outline his need to file another
pleading, nor did he describe the pleading’s anticipated content or relevance. PFR File,
Tab 4.
4
ANALYSIS
The doctrine of res judicata prevents repetitious litigation, as it precludes
parties from relitigating claims that were, or could have been, raised in prior
actions. Hooker v. Department of Veterans Affairs, 122 M.S.P.R. 551, ¶ 10
(2015). Res judicata applies when (1) the prior judgment was rendered by a
forum with competent jurisdiction, (2) the prior judgment was final and on the
merits, and (3) the same cause of action and the same parties or their privies were
involved in both cases. Id.
The record in this IRA appeal is not sufficiently developed to determine
whether it is barred by res judicata. The doctrine of res judicata serves as a basis
to dismiss an appeal over which the Board has jurisdiction. Merzweiler v. Office
of Personnel Management, 100 M.S.P.R. 442, ¶ 7 (2005). Yet, when Board
jurisdiction over an appeal is lacking, this doctrine generally will not serve as
appropriate grounds for dismissal. Id. Rather, the appeal should be dismissed for
lack of jurisdiction. Id., ¶¶ 1, 8. For the reasons outlined herein, the question of
whether the Board has jurisdiction over this IRA appeal is an unresolved issue;
and until this issue is resolved, it is not appropriate to apply res judicata to this
appeal. Accordingly, we vacate the initial decision’s conclusion that this appeal
is barred by res judicata.
Both the U.S. Court of Appeals for the Federal Circuit and the Board have
repeatedly held that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Smyth v. Department of
the Interior, 85 M.S.P.R. 552, ¶ 5 (2000). To establish Board jurisdiction over an
IRA appeal, an appellant must prove that he exhausted his administrative
remedies before OSC and make nonfrivolous allegations that (1) he made a
whistleblowing disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the whistleblowing disclosure or protected activity was a contributing
5
factor in the agency’s decision to take or fail to take a personnel action outlined
in 5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs, 123 M.S.P.R.
434, ¶ 12 (2016).
In this instant case, however, the administrative judge did not notify the
appellant of this jurisdictional requirement, nor did she provide him with an
opportunity to prove that he satisfied such a requirement. Although the
administrative judge issued an order to show cause regarding res judicata, it did
not contain any notice of the Board’s jurisdictional requirements in an IRA
appeal. 0126 IAF, Tab 15. The administrative judge’s error was not cured by the
agency’s submissions or the initial decision. Milam v. Department of Agriculture,
99 M.S.P.R. 485, ¶ 10 (2005). Thus, we remand this appeal to provide the
appellant with notice of his jurisdictional burden in an IRA appeal and an
opportunity to establish jurisdiction. See Roach v. Department of the Army,
86 M.S.P.R. 4, ¶¶ 14-15, 19 (2000) (remanding an IRA appeal because the
administrative judge failed to inform the appellant of the Board’s jurisdictional
requirements prior to dismissing the appeal for lack of jurisdiction).
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the New York Field
Office. On remand, the administrative judge shall provide the appellant with
6
jurisdictional notice in an IRA appeal and the opportunity to establish jurisdiction
over this appeal. 3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
Our final order dismissing the appellant’s IRA appeal in Fitzpatrick II for lack of
Board jurisdiction for failing to exhaust administrative remedies with OSC does not
impact our disposition regarding this appeal. See Bump v. Department of the Interior,
64 M.S.P.R. 326, 331-33 (1994) (holding that a jurisdictional dismissal of a prior IRA
appeal for failure to exhaust administrative remedies with OSC did not bar a second
IRA appeal of the same claim after OSC remedies were exhausted).