UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

93 MSPR 693

KENT P. NOBLE,

Appellant,

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0752-02-0516-I-1

DATE: August 13, 2003

Kent P. Noble

, Murfreesboro, Tennessee, pro se.

Cynthia R. Eggleston

, Memphis, Tennessee, for the agency.

BEFORE

Susanne T. Marshall, Chairman

Neil A.G. McPhie, Member

OPINION AND ORDER

¶1 The appellant petitions for review from the July 5, 2002 initial decision that

dismissed his appeal for lack of jurisdiction based on the doctrine of res judicata,

also known as claim preclusion. We GRANT the petition, VACATE the initial

decision, and REMAND the appeal to the Atlanta Regional Office for further

adjudication consistent with this Opinion and Order.

BACKGROUND

¶2 The agency reassigned the appellant from a full-time carrier position to a

part-time flexible clerk position on March 30, 1996. Appeal File (AF), Tab 1,

PFA at 2. The appellant appealed this reassignment to the Board in April of

1996, claiming discrimination. Noble v. U.S. Postal Service, MSPB Docket No.

AT-0752-96-0534-I-1; AF, Tab 4, Exh. E. The administrative judge (AJ)

dismissed this appeal because the appellant’s reassignment did not reduce his

grade or pay and the Board does not have jurisdiction over lateral reassignments

that do not reduce an appellant’s grade or pay. Id. at 2. The AJ further found

that the Board lacked jurisdiction over the appellant’s discrimination allegations

as the Board had no jurisdiction over an otherwise appealable action. Id. at 3

(citing Wren v. Department of the Army, 2 M.S.P.R. 1, 5 (1980), aff’d, 681 F.2d

867, 871-73 (D.C. Cir. 1982)). The appellant filed a petition for review of this

decision but the Board dismissed this petition as untimely filed. Noble v. U.S.

Postal Service, 73 M.S.P.R. 59 (1997).

¶3 In May of 1997, the appellant appealed lost wages and promotional

potential based on his 1996 reassignment. Noble v. U.S. Postal Service, MSPB

Docket No. AT-0752-97-0657-I-1; AF, Tab 4, Exh. H. Without making a specific

finding regarding jurisdiction, the AJ dismissed this second appeal under the

doctrine of collateral estoppel, also known as issue preclusion, based on the

appellant’s 1996 Board appeal. Id. The appellant did not file a petition for

review and the initial decision in this second appeal became a final Board

decision. Id.

¶4 Now, the appellant has brought a third appeal regarding his 1996

reassignment, claiming that he suffered a reduction in pay and disability

discrimination, and that the agency violated 38 U.S.C. § 4324, which is part of

the Uniformed Services Employment and Reemployment Rights Act (USERRA).

AF, Tab 1, PFA at 3 (Blocks 31b-c), Tab 8 at 1. Because the appellant had

previously brought two other Board appeals involving his 1996 reassignment, the

AJ notified the appellant that the Board might not have jurisdiction over his

appeal based on the doctrines of res judicata and/or collateral estoppel. AF, Tab

5 at 2. The AJ ordered the appellant to prove that his appeal was within the

Board’s jurisdiction but did not provide the appellant with a notice regarding how

to establish a USERRA claim. AF, Tabs 2, 5. The appellant timely responded to

the AJ’s order. AF, Tab 8. After reviewing the evidence, the AJ dismissed the

appeal for lack of jurisdiction under the doctrine of res judicata because the

appellant had previously brought a cause of action against the same agency under

the same operative facts. AF, Tab 9 at 1, 3. The appellant has timely filed a

petition for review of the AJ’s initial decision, arguing that his appeal should not

have been dismissed for lack of jurisdiction under the doctrine of res judicata.

Petition for Review File (PFRF), Tab 1 at 1. The agency has responded. PFRF,

Tab 3.

ANALYSIS

1. Res judicata does not bar this appeal.

¶5 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). But the doctrine of res judicata applies only in limited circumstances. It

is applicable only 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.

¶6 The second criterion is not satisfied here. Here, the AJ relied on the

judgment in the appellant’s 1996 appeal to bar the present action. AF, Tab 9 at 3.

But the 1996 appeal was dismissed for lack of subject matter jurisdiction. Noble

v. U.S. Postal Service, MSPB Docket No. AT-0752-96-0534-I-1 (dismissing the

appeal because the Board does not have jurisdiction over lateral reassignments

that do not reduce an appellant’s grade or pay); AF, Tab 4, Exh. E. A dismissal

for lack of subject matter jurisdiction is not “on the merits” and, therefore, cannot

be given res judicata effect. Peartree, 66 M.S.P.R. at 339; see also Johnson v.

Department of the Air Force, 92 M.S.P.R. 370, ¶ 12 (2002), appeal dismissed,

No. 03-3077 (Fed. Cir. Jan. 8, 2003) (Table).

¶7 Moreover, the doctrine of res judicata is not grounds upon which to dismiss

an appeal for lack of jurisdiction but, rather, is a basis to dismiss an appeal over

which the Board has jurisdiction. Perdue v. Department of Transportation, 87

M.S.P.R. 551, ¶ 8 (2001); Mycka v. Office of Personnel Management, 56

M.S.P.R. 675, 679 (1993). Thus, the doctrine of res judicata should not have

been used to dismiss this appeal for lack of jurisdiction.

2. The appellant is barred from relitigating whether the Board has

jurisdiction under 5 U.S.C. § 7513(d).

¶8 Instead, we find that the doctrine of collateral estoppel precludes the

appellant from relitigating whether the Board has jurisdiction over his 1996

reassignment and alleged reduction in pay under 5 U.S.C. § 7513(d). Collateral

estoppel precludes a party from relitigating an issue when: (1) an issue is

identical to that involved in a prior action; (2) the issue was actually litigated in

the prior action; (3) the determination on the issue in the prior action was

necessary to the resulting judgment; and (4) the party precluded was fully

represented in the prior action. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239

(Fed. Cir. 1988); Peartree, 66 M.S.P.R. at 341. Moreover, unlike res judicata,

collateral estoppel may bar a party from relitigating an issue in a second action

even when the prior appeal was dismissed for lack of subject matter jurisdiction.

Peartree, 66 M.S.P.R. at 338; see Luecht v. Department of the Navy, 87 M.S.P.R.

297, ¶ 16 (2000) (collaterally estopping the appellant from asserting an issue the

appellant raised in a previous appeal, which was dismissed for lack of

jurisdiction).

¶9 Here, the appellant argues that the Board has jurisdiction over his 1996

reassignment and alleged reduction in pay under 5 U.S.C. § 7513(d). AF, Tab 1,

PFA at 3, Tab 8. Both of these issues were raised and decided in the appellant’s

earlier, dismissed appeals, which held that the 1996 reassignment was not

appealable under Chapter 75 and did not result in an appealable reduction in pay.

Noble v. U.S. Postal Service, MSPB Docket No. AT-0752-96-0534-I-1

(dismissing appellant’s appeal of his 1996 reassignment for lack of jurisdiction

because the appellant’s reassignment did not result in a reduction in pay), AF,

Tab 4, Exh. E; Noble v. U.S. Postal Service, MSPB Docket No. AT-0752-97-

0657-I-1 (dismissing, under doctrine of collateral estoppel, appellant’s appeal of

lost wages and promotion potential based on his 1996 reassignment), AF, Tab 4,

Exh. H. Thus, these issues were actually litigated in his prior appeals. See

Banner v. United States, 238 F.3d 1348, 1354 (Fed. Cir. 2001) (the “actually

litigated” element is satisfied when the issue was “properly raised by the

pleadings, was submitted for determination, and was determined”); see also Luna

v. Department of the Air Force, 87 M.S.P.R. 232, ¶ 8 (2000). The determination

of whether the Board had 5 U.S.C. § 7513(d) jurisdiction over the appellant’s

1996 reassignment and alleged reduction in pay was necessary to the dismissals

in the appellant’s prior Board appeals. Finally, the appellant has fully

represented himself in each of his appeals. See Fisher v. Department of Defense,

64 M.S.P.R. 509, 515 (1994) (a party’s pro se status does not preclude the

application of collateral estoppel; the “fully represented” requirement is satisfied

when the party to whom collateral estoppel is applied has had a full and fair

chance to litigate the issue in question). Thus, the doctrine of collateral estoppel

bars the appellant from relitigating the Board’s jurisdiction over his 1996

reassignment and alleged reduction in pay based on 5 U.S.C. § 7513(d).

¶10 Although the appellant is precluded from attempting to establish Board

jurisdiction under Chapter 75, we refrain from deciding whether the Board has

USERRA jurisdiction over this appeal. Applying collateral estoppel to

jurisdictional issues within an appeal, without deciding whether the Board

otherwise has jurisdiction over the appeal, appears to conflict with earlier Board

decisions, however. In earlier decisions, we stated that collateral estoppel is

grounds for dismissing an appeal over which the Board has jurisdiction, but not

grounds for dismissing an appeal for lack of jurisdiction. Perdue, 87 M.S.P.R.

551, ¶ 8 (citing Mycka, 56 M.S.P.R. at 679).

This earlier statement is incorrect

and we correct it now.

¶11 Collateral estoppel may be grounds for dismissing an appeal for lack of

jurisdiction if a jurisdictional determination in a prior decision is afforded

collateral estoppel effect and the appellant provides no other valid basis of Board

jurisdiction. See Setevage v. Department of Defense, 77 M.S.P.R. 120, 125

(1997) (denying a PFR because the appellant was precluded from relitigating one

jurisdictional issue and failed to set forth any other basis of jurisdiction);

Gregory v. Office of Personnel Management, 66 M.S.P.R. 691, 700 (finding that

the Board would not have jurisdiction over an appeal even if the appellant was

not barred from relitigating a jurisdictional issue), aff’d, 64 F.3d 677 (Fed. Cir.

1995) (Table); Malone v. Department of the Treasury, 57 M.S.P.R. 12, 15 (1993)

(dismissing an appeal for lack of jurisdiction because collateral estoppel

precluded the appellant from raising an issue and the appellant’s other claims

were moot); Peartree, 66 M.S.P.R. at 338, 341 (reasoning that a jurisdictional

determination may be afforded collateral estoppel effect, precluding relitigation

of the same jurisdictional issue); see also Mintzmyer v. Department of the

Interior, 84 F.3d 419, 423-24 (Fed. Cir. 1996) (concluding the Board lacked

jurisdiction over an issue because collateral estoppel barred relitigation of the

issue). For these reasons, we find that collateral estoppel bars the appellant from

relitigating the Board’s jurisdiction over his 1996 reassignment and alleged

The Board originally made this statement in Mycka, 56 M.S.P.R. at 679, construing

Spears v. Merit Systems Protection Board, 766 F.2d 520, 522-23 (Fed. Cir. 1985)

(finding jurisdiction but dismissing the appeal as barred by res judicata), and Caple v.

U.S. Postal Service, 52 M.S.P.R. 262, 266 (1992) (making a determination that res

judicata barred the Board from hearing an appeal “independently” from a determination

regarding the Board’s jurisdiction). The Board later clarified that Caple was actually

barred by the doctrine of collateral estoppel. Peartree, 66 M.S.P.R. at 338-39.

reduction in pay based on 5 U.S.C. § 7513(d), although we decline to determine

whether the Board has USERRA jurisdiction over this appeal.

3. The AJ must instruct the appellant how to establish a USERRA

claim.

¶12 The appellant is not precluded from asserting in this appeal that his 1996

reassignment violated USERRA because the appellant did not raise this issue in

his prior appeals. See Kroeger, 865 F.2d at 239. Below, the appellant asserted

that his reassignment violated 38 U.S.C. § 4324, which is a part of USERRA.

AF, Tab 1, PFA at 3 (Block 31). An individual may be able to challenge a

reassignment to a new position as discriminatory under USERRA if the

reassignment denied a benefit of employment on the basis of the individual’s

membership or performance of service in a uniformed service. See 38 U.S.C.

§§ 4311(a), 4324; Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7

n.1 (2001); McAfee v. Social Security Administration, 88 M.S.P.R. 4, ¶ 17 (2001);

see also Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1483 (Fed. Cir.

1998) (broadly defining the term “benefit of employment” to include two weeks

of training and a 30-day evaluation).

¶13 When an appellant raises a USERRA claim or affirmative defense, an AJ

must inform an appellant of the burden of proving this claim or defense, the

burden of going forward with the evidence, and the type of evidence necessary.

Fox v. U.S. Postal Service, 88 M.S.P.R. 381, ¶¶ 10, 14 (2001); see also Burgess

v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here,

the acknowledgement order provided no information about how to establish the

Board’s USERRA jurisdiction. AF, Tabs 2, 5. The agency’s motion to dismiss

did not notify the appellant about what was required to establish a nonfrivolous

allegation of discrimination under USERRA. AF, Tab 4; see Collins v.

Department of Justice, 70 M.S.P.R. 334, 338 (1996). And the initial decision did

not mention the appellant’s USERRA claim. AF, Tab 9; see Spithaler v. Office of

Personnel Management, 1 M.S.P.R. 587, 589 (1980) (concluding that an initial

decision must identify and address all material issues of fact and law raised in an

appeal). We must, therefore, remand this appeal in order for the AJ to inform the

appellant of the methods of proving a USERRA claim and to allow the parties to

develop the record accordingly. See McAfee, 88 M.S.P.R. 4, ¶¶ 13-14; Riordan v.

U.S. Postal Service, 84 M.S.P.R. 410, ¶ 4 (1999).

4. The Board has no jurisdiction over the disability discrimination

claims.

¶14 Finally, we find that the Board has no jurisdiction over the appellant’s

disability discrimination claims. AF, Tab 8 at 1-3. If a personnel action is not

appealable to the Board under a law, rule or regulation other than USERRA, the

Board lacks the authority to decide whether the personnel action constitutes a

form of prohibited discrimination, such as one listed at 5 U.S.C. § 7702(a)(1).

Bodus v. Department of the Air Force, 82 M.S.P.R. 508, ¶¶ 14-17 (1999).

Specifically, USERRA does not authorize the Board to adjudicate a claim of

discrimination based on a disability alone. McBride v. U.S. Postal Service, 78

M.S.P.R. 411, 415 (1998) (dismissing a USERRA claim where the appellant, who

was a veteran, alleged only disability discrimination). Because the appellant’s

1996 reassignment is not appealable to the Board under any law rule or regulation

other than USERRA, and the appellant has alleged that the agency discriminated

against him based on the appellant’s alleged major depression and sleep shift-

work disorder and not because of his status as a disabled veteran, the Board does

not have jurisdiction to adjudicate the appellant’s disability discrimination

claims. See id.; Bodus, 82 M.S.P.R. 508, ¶¶ 14-17; McAfee, 88 M.S.P.R. 4, ¶ 16

n.2.

ORDER

¶15 For these reasons, we VACATE the initial decision and REMAND this

appeal to the Atlanta Regional Office for further proceedings on the appellant’s

USERRA claim and for the issuance of a new initial decision. On remand, the AJ

shall provide the appellant with explicit notice regarding how to establish Board

jurisdiction over his USERRA claim and, if the appellant establishes Board

jurisdiction over that claim, adjudicate the claim on its merits. The AJ should

incorporate by reference into his new initial decision our analysis and conclusion

regarding the appellant’s Chapter 75 claims so that the parties will have a single

decision addressing both the appellant’s USERRA and Chapter 75 claims.

FOR THE BOARD:

Washington, D.C.

______________________________

Bentley M. Roberts, Jr.

Clerk of the Board