                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 44
                                 Docket No. AT-0752-10-0367-B-4

                                    Carlton E. Hooker, Jr.,
                                          Appellant,
                                               v.
                             Department of Veterans Affairs,
                                            Agency.
                                          July 15, 2015

           Carlton E. Hooker, Jr., Saint Petersburg, Florida, pro se.

           Karen L. Mulcahy, Esquire, Bay Pines, Florida, for the agency.


                                           BEFORE

                                 Susan Tsui Grundmann, Chairman
                                    Mark A. Robbins, Member



                                    OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that dismissed this
     appeal as barred by the doctrine of collateral estoppel. For the following reasons,
     we DENY the petition for review and AFFIRM the initial decision AS
     MODIFIED by this Opinion and Order, dismissing the appeal as barred by the
     doctrine of res judicata.

                                        BACKGROUND
¶2         In a July 27, 2011 Order, the Board remanded this case, which involved the
     appellant’s January 4, 2010 removal, for further adjudication.      See Hooker v.
     Department of Veterans Affairs, MSPB Docket No. AT-0752-10-0367-I-1, Initial
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     Appeal File (IAF), Tab 14, Subtab 4a; see also Hooker v. Department of Veterans
     Affairs, MSPB Docket Nos. AT-0752-10-0367-I-1, MSPB Docket No. AT-1221-
     11-0246-W-1, Remand Order at 2-3 (July 27, 2011) (Remand Order). The Board
     found no merit to the appellant’s allegations that the agency denied him due
     process and that the administrative judge, in affirming his removal, incorrectly
     analyzed and sustained certain charges. Remand Order at 3. Nevertheless, the
     Board remanded the appeal to permit the appellant to present documentary and
     testimonial evidence regarding his affirmative defense of discrimination in
     accordance with the Board’s holding in Davis v. Department of the Interior,
     114 M.S.P.R. 527 (2010). Remand Order at 2-3, 5. The Board also found that
     further adjudication was required to afford the appellant an opportunity to clarify
     whether he was challenging his proposed removal in addition to the effected
     removal, and to determine whether his whistleblowing claim, which he initially
     raised in connection with his removal, remained an issue in the case. Id. at 3-5.
¶3         On remand, the parties identified the remaining issues in this case as
     whether the agency’s action constituted reprisal for whistleblowing activity,
     discrimination on the basis of race, and/or unlawful retaliation in response to the
     appellant’s equal employment opportunity (EEO) complaints and “other protected
     activities.”   Hooker v. Department of Veterans Affairs, MSPB Docket No.
     AT-0752-10-0367-B-1, Remand Appeal File, Tab 19 at 4-6. Regarding the first
     issue, the appellant stated that he made protected disclosures when he provided
     testimony about a hostile work environment and prohibited personnel practices
     during an administrative investigation in 2008, and when he filed EEO complaints
     after that investigation. Id. at 4-5.
¶4         After dismissing the appeal three times without prejudice to refiling at the
     appellant’s request, the administrative judge dismissed this refiled appeal with
     prejudice upon finding that the elements necessary for the application of
     collateral estoppel were present.       The administrative judge held that:   (1) the
     appellant’s allegation in this case that the agency retaliated against him for
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     engaging in protected activity leading up to and including his removal from
     federal service was identical to that involved in a prior action in a U.S. district
     court; (2) the decision in the prior action in U.S. district court was based upon the
     same issues raised in this case; (3) the U.S. district court’s determination (to
     dismiss the appellant’s case with prejudice because of his willful and intentional
     failure to comply with its discovery order addressing his allegation that the
     agency retaliated against him for engaging in protected activity leading up to and
     including his removal from federal service) was necessary to the court’s final
     judgment; and (4) the appellant had a full and fair opportunity to litigate the
     issues in U.S. district court. Hooker v. Department of Veterans Affairs, MSPB
     Docket No. AT-0752-10-0367-B-4, Refiled Remand Appeal File (RRAF), Tab 10,
     Initial Decision at 7-8.
¶5         On petition for review, the appellant asserts that the administrative judge
     should not have applied collateral estoppel because the issues in his Board appeal
     are different from the issues that were litigated in U.S. district court. Petition for
     Review (PFR) File, Tab 3 at 14-15. In this regard, the appellant asserts that the
     first two actions he filed in U.S. district court (Hooker I and Hooker II) arose
     from his proposed suspension, the third action (Hooker III) filed in U.S. district
     court involved claims that “did not mirror the merit systems arguments typically
     at issue before the Board,” and the U.S district court summarily dismissed Hooker
     III on collateral estoppel grounds. Id. at 15. The appellant also contends that this
     Board appeal involves his removal, which he claims has never been litigated on
     the merits, while Hooker III involved other matters, such as his proposed removal
     and prior suspensions. Id. at 15-17. The appellant asserts that he could not have
     raised the claims he raised in Hooker III in the prior two court actions because he
     had not exhausted all administrative remedies pertaining to those claims until
     after Hooker I and Hooker II had been filed. Id. at 17-18. As set forth below, we
     need not address these arguments regarding collateral estoppel because we find
     that this appeal is barred by the doctrine of res judicata.
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                                          ANALYSIS
¶6         Notwithstanding any other provision of law, if at any time after the 120th
     day following the filing of a mixed-case appeal with the Board under 5 U.S.C.
     § 7702(a)(1) there is no judicially reviewable action, an employee shall be
     entitled to file a civil action to the same extent and in the same manner as
     provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C.
     § 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of
     1967 (29 U.S.C. § 633a(c)), or section 16(b) of the Fair Labor Standards Act of
     1938 (29 U.S.C. § 216(b)).        5 U.S.C. § 7702(e)(1)(B).      Board law permits
     simultaneous adjudication of a mixed-case appeal before the Board and a U.S.
     district court.   Padilla v. Department of the Air Force, 58 M.S.P.R. 561, 567
     (1993). As set forth below, we find that the appellant exercised his right under
     5 U.S.C. § 7702(e)(1)(B) to file a civil action in U.S. district court.
¶7         The appellant filed his Board appeal challenging his removal on or about
     February 1, 2010. IAF, Tab 1. More than 120 days later, on June 3, 2011, after
     the administrative judge had affirmed the appellant’s removal in an August 7,
     2010 initial decision, but before the Board issued its July 27, 2011 Remand
     Order, the appellant filed a complaint in the U.S. District Court for the Middle
     District of Florida (Hooker I) alleging, among other things, that the agency
     terminated him based on retaliation for protected activity. RRAF, Tab 5 at 11,
     14, 17, 19-21. On January 28, 2013, the U.S. district court judge issued an order
     granting the agency’s motion for a separate final judgment in Hooker I pursuant
     to Federal Rule of Civil Procedure 58(a) (entering judgment).             RRAF, Tab 5
     at 24-25. The judge noted that she had already entered a December 6, 2012 order
     adopting the Report and Recommendation of the Magistrate Judge and dismissing
     the action pursuant to Federal Rule of Civil Procedure 37(b)(2) (failure to make
     disclosures or to cooperate in discovery; sanctions) based upon the appellant’s
     willful failure to comply with the court’s discovery orders. RRAF, Tab 5 at 25.
     The clerk of the U.S. district court then issued a January 29, 2013 “Final
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     Judgment in a Civil Case,” noting that the action came to a trial or hearing before
     the court, the issues were tried or heard, a decision was rendered, and it was
     ordered and adjudged that judgment be entered in favor of the defendant and
     against the appellant. Id. at 27.
¶8         On December 7, 2012, the appellant filed another civil action (Hooker II) in
     the U.S. District Court for the Middle District of Florida in which he alleged that
     he was refiling his “terminated complaint” without a substantial change in the
     issues or parties. Id. at 28. The appellant again asserted that the agency removed
     him in retaliation for protected activity. Id. at 29, 34, 38-39. On February 15,
     2013, the court granted the agency’s motion to dismiss the case with prejudice,
     finding that it was barred by the doctrine of res judicata. Id. at 51-53. Finally, on
     February 10, 2014, the appellant filed a third complaint in the U.S. District Court
     for the Middle District of Florida (Hooker III), again alleging that the agency
     wrongfully terminated him in retaliation for protected activity. Id. at 54-55, 58,
     64-65, 68-69.     On April 29, 2014, the court granted the agency’s motion to
     dismiss this third complaint as barred by the doctrine of res judicata.                  Id.
     at 83-87. On appeal of Hooker III, the U.S. Court of Appeals for the 11th Circuit
     affirmed, finding that the civil actions all arose out of the same nucleus of
     operative fact and that the appellant raised, or could have raised, his removal in
     all of the cases he had filed in U.S. district court. See Hooker v. Secretary, U.S.
     Department of Veterans Affairs, No. 14-12894, 2015 WL 1609928, at *1-3 (11th
     Cir. Apr. 13, 2015).
¶9         We find that the appellant exercised his right set forth at 5 U.S.C.
     § 7702(e)(1)(B) when he filed the above civil actions in U.S. district court after
     120 days had passed following the filing of his Board appeal. * When an appellant


     *
      In fact, in an April 10, 2014 “Motion for Voluntary Dismissal Without Prejudice,” the
     appellant indicated that he had filed suit in U.S. district court, asserted that a failure to
     grant his motion would burden him with concurrently litigating “the same claims”
                                                                                      6

      exercises the right set forth at 5 U.S.C. § 7702(e)(1)(B), the U.S. district court
      has jurisdiction to consider both the discrimination and nondiscrimination claims.
      See Bonds v. Leavitt, 629 F.3d 369, 378-79 (4th Cir. 2011), cert. denied, 132 S.
      Ct. 398 (2011); see also Ikossi v. Department of the Navy, 516 F.3d 1037,
      1040-44 (D.C. Cir. 2008).
¶10        We find that the elements for applying res judicata are present in this case.
      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.    Peartree v. U.S. Postal
      Service, 66 M.S.P.R. 332, 337 (1995). The U.S. district court was a forum with
      competent jurisdiction under 5 U.S.C. § 7702(e)(1)(B), as set forth above, and the
      court’s determinations were final judgments on the merits.      See Bernstein v.
      Bankert, 733 F.3d 190, 224-25 (7th Cir. 2012) (suggesting that a dismissal on res
      judicata grounds is a final judgment on the merits), cert. denied, 134 S. Ct. 1024
      (2014); see also Matter of Reed, 861 F.2d 1381, 1382-83 (5th Cir. 1988)
      (dismissal under Federal Rule of Civil Procedure 37(b)(2)(C) is a final judgment
      on the merits); Dillard v. Security Pacific Brokers, Inc., 835 F.2d 607, 608 (5th
      Cir. 1988) (same); Federal Rule of Civil Procedure 41(b) (a dismissal for failure
      to prosecute or comply with the Federal Rules of Civil Procedure operates as an
      adjudication on the merits); cf. Nasalok Coating Corp. v. Nylok Corp., 522 F.3d
      1320, 1329 (Fed. Cir. 2008) (a default judgment can operate as res judicata in
      appropriate circumstances); Triplett v. Office of Personnel Management,
      105 M.S.P.R. 575, ¶ 9 (a dismissal for failure to prosecute a Board appeal is a


      before the U.S. district court and the Board, and specifically cited to 5 U.S.C.
      § 7702(e)(1) in support of his motion. Hooker v. Department of Veterans Affairs,
      MSPB Docket No. AT-0752-10-0367-B-3, Refiled Remand Appeal File, Tab 3 at 4-5.
                                                                                        7

      valid, final judgment on the merits under the doctrine of res judicata), aff’d,
      250 F. App’x 322 (Fed. Cir. 2007). Moreover, as set forth in detail above, the
      same cause of action and the same parties were involved in both cases. See Frias
      v. U.S. Postal Service, 63 M.S.P.R. 276, 280 (for res judicata purposes, a cause of
      action is the set of facts which gives an appellant the right to seek relief from an
      agency), aff’d, 43 F.3d 1486 (Fed. Cir. 1994) (Table).
¶11        The appellant contends that, even if the elements for applying collateral
      estoppel have been met in this case, a redetermination of his removal is warranted
      because there is reason to doubt the quality, extensiveness, and procedural and
      substantive fairness of the U.S. district court’s adjudication. PFR File, Tab 3
      at 20-21. The appellant also asserts that he has not yet had an opportunity to
      address his case under the Davis factors, as required in the Board-ordered
      remand, and that the administrative judge violated his right to a fair hearing
      because the Board has jurisdiction over this appeal. Id. at 22-25. The appellant
      submits with his petition for review the transcript of two depositions in his EEO
      complaint that were taken in 2010, which he contends support the merits of his
      retaliation claims. Id. at 23-24, 27-28, 30-43. These arguments do not affect our
      determination to dismiss this appeal.
¶12        Because we have found that res judicata applies in this case, we need not
      address whether there is a reason not to apply collateral estoppel, such as a reason
      to doubt the quality of the prior adjudication. See Milligan v. U.S. Postal Service,
      106 M.S.P.R. 414, ¶ 9 (2007) (a redetermination of issues may be warranted when
      there is reason to doubt the quality or extensiveness of a prior adjudication).
      Although the appellant contends that he has not yet had an opportunity to address
      the Davis factors in his Board appeal, any such lack of opportunity is the result of
      his election under 5 U.S.C. § 7702(e)(1)(B) and the district court’s issuance of its
      decisions on the merits. The appellant’s claim that the Board has jurisdiction
      over this appeal does not affect our determination to apply res judicata.       See
      Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 12 (1999) (res judicata is a basis
                                                                                        8

      to dismiss an appeal over which the Board has jurisdiction).            Finally, the
      appellant has not alleged or shown that the depositions he submits on review have
      any bearing on whether the requirements for applying the doctrine of res judicata
      have been met in this case.
¶13        Accordingly, we AFFIRM the initial decision AS MODIFIED by this
      Opinion and Order, DISMISSING this appeal based on res judicata.

                                            ORDER
¶14        This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request 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 your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                                                                    9

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.         42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
                                                                                 10

may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
         If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which       can      be      accessed      through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States 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 Merit Systems Protection Board neither endorses the services
                                                                               11

provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
