                      NOTE: This disposition is nonprecedential


 United States Court of Appeals for the Federal Circuit
                                     2006-3342


                               GEORGE E. KINCADE,

                                                           Petitioner,

                                          v.


                        DEPARTMENT OF THE TREASURY,

                                                           Respondent.


      George E. Kincade, of Bridgeport, Connecticut, pro se.

       Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Deborah A. Bynum, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                         2006-3342



                                  GEORGE E. KINCADE,

                                                                 Petitioner,

                                              v.

                          DEPARTMENT OF THE TREASURY,

                                                                 Respondent.



                            __________________________

                            DECIDED: March 28, 2007
                            __________________________



Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.

NEWMAN, Circuit Judge.




       George E. Kincade, appearing pro se, appeals the decision of the Merit Systems

Protection Board dismissing the appeal of his removal from employment by the Internal

Revenue Service (IRS). The Board held that since the IRS had subsequently cancelled

the removal, and the United States District Court for the District of Connecticut resolved his
discrimination and retaliation claims, his appeal to the Board was moot. 1 We agree that the

issues on appeal are now moot, and discern no legal, factual or procedural error in the

Board's decision, which is affirmed.

                                       BACKGROUND

          Mr. Kincade was employed as a GS-09 Revenue Officer in the Norwalk, Connecticut

office.    He states that he experienced various performance issues, that he had a

contentious relationship with his supervisors, and that he suffered health problems. The

IRS approved his request for extended leave in light of the health problems, and in August

1999 he was placed in Leave Without Pay status. On September 20, 2000, during his

LWOP status, Mr. Kincade filed suit in the United States District Court for the District of

Connecticut alleging, inter alia, racial discrimination and retaliation, and seeking relief

including damages.

          By letter dated November 29, 2000, the agency proposed to remove Mr. Kincade

from service, based on his unavailability for work since May 1999 for medical reasons. Mr.

Kincade responded, stating that his absence from work was due to illness caused by a

stressful work environment including the racial discrimination that he experienced. He

explained that he would only return to work with his doctor's permission, and charged that

the proposed removal was an additional discriminatory insult by the IRS.




      1      Kincade v. Department of the Treasury, No. BN0752010143-I-3 (M.S.P.B.
Feb. 22, 2006).




2006-3342                                    2
       Mr. Kincade pursued his claims of discrimination, retaliation, and emotional stress in

several forums, including the Equal Employment Opportunity Commission, the Board, and

federal district court. On March 30, 2001 he filed suit in the United States District Court for

the District of Connecticut. The district court found that various issues had negatively

impacted his job performance. For example, Mr. Kincade, although an IRS employee, was

suspended for failing to file an income tax return in 1991, 1992, 1993, and 1994; he also

received poor performance reviews, and his duties were altered because of inadequate

performance. The district court granted the government's motion for summary judgment,

rejecting all of Mr. Kincade's claims of discrimination and retaliation. 2

       Mr. Kincade's application for disability retirement was granted by OPM on April 23,

2001, one month after his removal, retroactive to August 24, 1999. It appears that OPM in

May 2000 informed Mr. Kincade that he had not satisfied the criteria for disability retirement

because the agency determined that he "failed to meet the burden of proof that [to be]

eligible for disability retirement based on all of the evidence of record in [his] case file"; but

it appears to have been resolved with reinstatement of disability retirement in 2001.

Meanwhile, in addition to the Connecticut suit, supra, he continued to contest the removal

by administrative appeal. Mr. Kincade refiled his appeal with the Board on April 25, 2005.

Subsequently, in view of the renewed grant of disability retirement, the IRS expressly

cancelled the removal action on December 14, 2005, and then moved before the Board

that the removal was moot.


       2     Kincade v. Department of the Treasury, No. 300-CV-1801-PCD (D. Conn.
Sept. 29, 2003).




2006-3342                                       3
       On February 22, 2006 an Administrative Judge of the MSPB dismissed the appeal

as moot. The AJ reasoned that since Mr. Kincade's disability retirement was retroactive to

August 1999, before the agency removal went into effect, the practical result was that the

agency cancelled his removal in favor of disability retirement. The AJ declined to consider

Mr. Kincade's discrimination and reprisal claims, observing that they were disposed of in

the Connecticut district court. The full Board declined review, and this appeal followed.

                                        DISCUSSION

       We affirm a decision of the Board unless it is (1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by substantial

evidence. 5 U.S.C. §7703(c) (2000); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138,

140 (Fed. Cir. 1986). The petitioner bears the burden of establishing error in the Board's

decision. Id.

       Mr. Kincade argues that the Board erred on two grounds: (1) that his claims in

connection with his removal action were not mooted upon the agency's recission of the

action, and (2) that his discrimination, retaliation, and emotional distress claims should now

be considered. He seeks compensation for "physical and mental damage" inflicted by the

IRS and for loss of income.

                                               A

       As these proceedings evolved, the IRS expressly cancelled the removal action and

on January 3, 2006 placed a letter in Mr. Kincade's Official Personnel Folder (OPF) to show

retirement for disability. The government states, and we agree, that this is the full relief that

would have been available to Mr. Kincade with respect to the removal. See Cooper v.


2006-3342                                      4
Dep't of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (the agency's cancellation of a

removal action and deletion of adverse references from the Official Personnel File negate

the consequences of the removal and hence any appeal becomes moot).

       We affirm the Board's ruling that the IRS' cancellation of Mr. Kincade's removal and

the adjustment of his official records to show disability retirement mooted the appeal to the

MSPB, and that it was properly dismissed on this ground.

                                               B

       Mr. Kincade also argues that the Board erred in not examining his claims of racial

discrimination, retaliation, and emotional distress. The AJ held that his Title VII charges of

discrimination and reprisal were res judicata, for they were heard and found meritless by

the district court. See Montana v. United States, 440 U.S. 147, 153 (1979) (a right or fact

that was at issue and finally determined by a court of competent jurisdiction cannot be

relitigated in a subsequent suit between the same parties or their privies). We discern no

error by the Board, for Mr. Kincade's discrimination and reprisal claims had been decided in

the district court, and were not subject to review or relitigation before the Board. Although

Mr. Kincade is correct that there was a jurisdictional basis for his discrimination and reprisal

claims, see Lamberson v. Dep't of Veterans Affairs, 80 M.S.P.R. 648, 650-51 (M.S.P.B.

1999) (the Board may retain jurisdiction of an appeal for relief and compensatory damages

under, inter alia, discrimination and whistleblowing statutes notwithstanding the appellant's

retroactive retirement status), in the Kincade circumstances the claims are barred by res

judicata. Mr. Kincade's contention that the IRS inflicted "physical and mental damage" and

placed excessive stress upon him was resolved by the district court. To the extent that Mr.




2006-3342                                      5
Kincade is dissatisfied with the decision of the district court, his path of review was not

through the MSPB or this court.

       Mr. Kincade also argues that he has a right to a hearing on his discrimination and

reprisal claims, and that the district court's summary dismissal of those claims violated

constitutional rights. We discern no constitutional issue, and no error by the Board in its

treatment of these issues.




2006-3342                                   6
