       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                     ERIC ROSE,
                      Petitioner

                           v.

           DEPARTMENT OF DEFENSE,
                    Respondent
              ______________________

                      2017-1621
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-1221-15-0538-W-1.
                ______________________

               Decided: August 11, 2017
                ______________________

   ERIC ROSE, Gulfport, MS, pro se.

    STEVEN C. HOUGH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
                ______________________

    Before WALLACH, CHEN, and HUGHES, Circuit Judges.
2                                      ROSE   v. DEP’T OF DEF.



PER CURIAM.
    Petitioner Eric Rose appeals the final order of the
Merit Systems Protection Board (“MSPB”) affirming an
administrative judge’s (“AJ”) dismissal of his appeal
based on res judicata. See Rose v. Dep’t of Def. (Rose III),
No. AT-1221-15-0538-W-1, 2016 WL 7439325, at ¶ 1
(M.S.P.B. Dec. 15, 2016). We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9) (2012). We affirm.
                      BACKGROUND 1
    Mr. Rose is a former employee of the U.S. Department
of Defense (“DOD”). Rose III, 2016 WL 7439325, at ¶ 3.
Due to a supervisor’s false statements about him, Mr.
Rose was arrested, issued two criminal tickets, and
barred from entering the duty station where he worked as
a Store Worker/Forklift Operator. Id. DOD eventually
removed Mr. Rose from his position due to an extended
absence without leave. Id. ¶ 4.
    Mr. Rose filed three appeals to the MSPB relating to
his barment and eventual removal. First, Mr. Rose
unsuccessfully challenged his barment as a constructive
suspension. See Rose v. Dep’t of Def. (Rose I), 118
M.S.P.R. 302, 303 (2012).
    Second, Mr. Rose challenged his removal and, follow-
ing two remands, the MSPB issued a final order affirming
the AJ’s decision to reverse Mr. Rose’s removal. See Rose
v. Dep’t of Def. (Rose II), No. AT-0752-12-0063-B-2, 2015
WL 4736787, at ¶¶ 5–10, 15 (M.S.P.B. Aug. 10, 2015).
The MSPB rejected Mr. Rose’s argument that he was
removed as reprisal for certain whistleblowing activities
“because he did not identify such a claim for adjudication



    1    Because the material facts are not in dispute, we
cite to the facts as recited in the MSPB’s prior decisions
pertaining to Mr. Rose.
ROSE   v. DEP’T OF DEF.                                     3



below or in his prior petition for review”; and it rejected
his argument that he was retaliated against for filing a
complaint with the Equal Employment Opportunity
Commission because this latter charge was “barred by the
law of the case doctrine.” Id. ¶ 13.
     Third, in the instant appeal, which was filed during
the pendency of his second appeal and after he had filed a
complaint with the Office of Special Counsel, Mr. Rose
filed an individual right of action (“IRA”) appeal. Rose III,
2016 WL 7439325, at ¶ 7; see Resp’t’s Suppl. App. 28, 31.
Mr. Rose contended that his supervisor retaliated against
him for his whistleblowing activity by “provid[ing] false
information to base security and negative information to
the naval commander,” leading to his barment and even-
tual removal. Rose III, 2016 WL 7439325, at ¶ 7. The
MSPB affirmed the AJ’s dismissal of Mr. Rose’s appeal,
determining that, inter alia, Mr. Rose’s claims were
barred by the doctrine of res judicata. Id. ¶ 15.
                          DISCUSSION
          I. Standard of Review and Legal Standard
    We affirm the MSPB’s decision unless, inter alia, it is
“not in accordance with law.” 5 U.S.C. § 7703(c)(1) (2012).
We review the MSPB’s legal determinations de novo.
Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed.
Cir. 2008). “The petitioner bears the burden of establish-
ing error in the [MSPB]’s decision.” Harris v. Dep’t of
Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
      The doctrine of res judicata “prevents parties from lit-
igating issues that could have been raised in a prior
action” and arise from the same operative facts. Carson v.
Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005); see
Renville v. Dep’t of Health & Human Servs., 632 F. App’x
611, 613 (Fed. Cir. 2015) (“Res judicata serves to lim-
it . . . claims that the party could have raised in an earlier
action arising from the same transaction or occurrence.”).
4                                       ROSE   v. DEP’T OF DEF.



The doctrine applies when: “(1) the prior decision was
rendered by a forum with competent jurisdiction; (2) the
prior decision was a final decision on the merits; and
(3) the same cause of action and the same parties or their
privies were involved in both cases.” Carson, 398 F.3d at
1375 (citation omitted). “In order that a final judgment
shall be given res judicata effect in a pending action, it is
not required that the judgment shall have been rendered
before that action was commenced.” Restatement (Sec-
ond) of Judgments § 14 cmt. a (Am. Law. Inst. 1982); see,
e.g., Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937–38 (5th
Cir. 2000) (applying Restatement (Second) of Judgments
§ 14 and affirming a dismissal based on res judicata). The
“same cause of action” clause of the third Carson factor is
met when the same event gave rise to both suits, even if a
different legal theory is pled in each appeal. See, e.g.,
N.J. Inst. of Tech. v. Medjet, Inc., 47 F. App’x 921, 923–25
(Fed. Cir. 2002). Whether the MSPB properly dismissed
an action based on res judicata raises a question of law
that we review de novo. See Renville, 632 F. App’x at 613.
    II. The Doctrine of Res Judicata Bars Mr. Rose’s Appeal
    Mr. Rose contends that the MSPB did not properly
apply the doctrine of res judicata. See Pet’r’s Br. 1, 3–4.
Specifically, he argues that neither the AJ nor the MSPB
reached the merits of the whistleblower claim, deciding
instead that they did not have jurisdiction over that
claim. Id. at 3–4.
    The MSPB appropriately determined that res judicata
barred Mr. Rose’s whistleblower claim based on its deci-
sion in Rose II. As to the first Carson factor, the MSPB
has jurisdiction over Mr. Rose’s original appeals challeng-
ing “a suspension of more than [fourteen] days” or “a
removal.” 5 U.S.C. § 7512; see id. § 7513(d). As to the
second Carson factor, the MSPB issued a final decision on
the merits regarding Mr. Rose’s prior appeals before
ROSE   v. DEP’T OF DEF.                                  5



giving preclusive effect to those decisions in the instant
IRA appeal. See Rose II, 2015 WL 4736787, at ¶ 1.
    As to the third Carson factor, even though Mr. Rose
attempts to distinguish his current whistleblowing claim,
this appeal involves the same parties and the same opera-
tive facts as Rose II. In Rose II, Mr. Rose challenged the
DOD’s actions that led to his suspension and removal.
See id. ¶¶ 1–2. The same operative facts were discussed
in his prior appeal. See id. ¶ 2 (reviewing Mr. Rose’s
supervisor’s false statements and Mr. Rose’s subsequent
barment). As such, Mr. Rose could have raised a whistle-
blower claim based on his suspension or removal in Rose
II. See 5 C.F.R. § 1209.2(b) (2017) (providing jurisdiction
to the MSPB over certain appeals relating to whistleblow-
ing and other protected activities). Although Mr. Rose
attempted to raise a whistleblower claim before the MSPB
in Rose II, the MSPB refused to consider it “because he
did not identify such a claim for adjudication below or in
his prior petition for review.” Rose II, 2015 WL 4736787,
at ¶ 13. Mr. Rose’s failure to properly raise a whistle-
blower claim as a defense in Rose II prevents him from
raising it now to re-challenge his removal. Cf. Sabersky v.
Dep’t of Justice, 61 F. App’x 676, 677 (Fed. Cir. 2003).
Thus, the doctrine of res judicata bars Mr. Rose’s appeal.
                          CONCLUSION
   We have considered Mr. Rose’s remaining arguments
and find them unpersuasive. Accordingly, the Final
Order of the Merit Systems Protection Board is
                          AFFIRMED
                            COSTS
   Each party shall bear its own costs.
