                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-3064

                                 KENNETH DEAN,

                                                          Petitioner,

                                         v.

                       UNITED STATES POSTAL SERVICE,

                                                          Respondent.


      Kenneth Dean, of College Park, Georgia, pro se.

     Michelle A. Windmueller, Appellate Counsel, United States Postal Service, of
Washington, DC, for respondent. With her on the brief was Lori J. Dym, Chief Counsel.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3064

                                  KENNETH DEAN,

                                               Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                               Respondent.


Petition for review of the Merit Systems Protection Board in AT0752080501-I-1.

                          __________________________

                          DECIDED: May 11, 2009
                          __________________________


Before MICHEL, Chief Judge, LOURIE and PROST, Circuit Judges.

PER CURIAM.

      Petitioner Kenneth Dean seeks review of the Merit Systems Protection Board

(“MSPB”) order dismissing his appeal as barred by the doctrine of res judicata.

Because the appeal was properly dismissed, we affirm.

                                   BACKGROUND

      Mr. Dean worked for the federal government for a total of fifteen years, six of

which were at the United States Postal Service (“USPS”). In 2001, Mr. Dean was

removed from service at the USPS. This removal was ultimately withdrawn as the

result of a settlement agreement, and in 2002 Mr. Dean returned to work. In early 2003,

however, Mr. Dean’s supervisor proposed once again to remove him based on three
charges: failing to be in regular attendance, failing to respond to official directives, and

being absent without official leave. After Mr. Dean was removed, he appealed the

decision to the MSPB. In September of 2004, Administrative Judge Miller issued an

initial decision affirming the USPS’s decision to remove Mr. Dean. Despite requesting

and receiving two extensions of time, Mr. Dean did not file a petition for review with the

MSPB until more than five months after the new deadline had passed. Dean v. U.S.

Postal Serv., 100 M.S.P.R. 556 (2005). The MSPB found Mr. Dean did not establish a

good cause for the delay, and held that Administrative Judge Miller’s initial decision

remained the final decision. Id. at 559.

       Mr. Dean filed a new appeal with the MSPB in April of 2008, stating (in relevant

part) that he was appealing his removal. In his appeal, he claimed that the removal

violated his veteran’s preference status, and indicated that the effective date of the

agency’s action was in 2006. Administrative Judge Vitaris issued an acknowledgement

order, telling Mr. Dean that his appeal might be barred under the doctrine of res judicata

since Mr. Dean seemed to be appealing the same 2003 removal he had already

appealed. In his initial decision, Administrative Judge Vitaris ultimately dismissed Mr.

Dean’s claim for that reason. Although Mr. Dean gave an effective date of 2006 in his

petition, the administrative judge found that Mr. Dean gave no evidence that he had

ever been reemployed with the USPS.          When Mr. Dean was asked about this, he

argued that the USPS breached the settlement agreement relating to his 2001 removal.

Administrative Judge Vitaris noted, however, that those arguments had already been

adjudicated in Dean v. United States Postal Service, 101 M.S.P.R. 356, 359 (2006).

Administrative Judge Vitaris then dismissed Mr. Dean’s appeal, stating that Mr. Dean




2009-3064                                    2
could not “again relitigate his 2003 removal action on the merits.” The decision was

affirmed in an October 2, 2008 order. Mr. Dean now appeals to this court. We have

jurisdiction to hear this case under 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      We must affirm the MSPB’s decision 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); see Parrott v. Merit Sys. Prot. Bd., 519

F.3d 1328, 1334 (Fed. Cir. 2008). Under this standard, we review the MSPB’s factual

findings for substantial evidence. Parrott, 519 F.3d at 1334. Whether a particular claim

is barred under the doctrine of res judicata is a question of law which we review without

deference. Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir. 2008).

      As the USPS points out, at most the MSPB made two factual findings. First,

Administrative Judge Vitaris found that Mr. Dean had not been reemployed with the

USPS after his 2003 termination. Second, he interpreted Mr. Dean’s appeal as relating

to Mr. Dean’s 2003 removal.       Both of these findings are supported by substantial

evidence.   After being told in the acknowledgement order that his claims might be

barred by res judicata and given an explanation as to why that was the case, Mr. Dean

failed to come forward with any evidence suggesting that Administrative Judge Vitaris

misunderstood Mr. Dean’s claims on appeal. Mr. Dean presented no evidence that he

had been rehired by the USPS after his 2003 removal, and the record contains no

evidence suggesting otherwise. Further, in his informal brief to us, Mr. Dean again

references his belief that the 2003 removal violated the 2001 settlement agreement.




2009-3064                                   3
         Therefore, it is the 2003 removal that is at issue here. As the MSPB held, Mr.

Dean’s claims regarding that removal are barred by the doctrine of res judicata. Res

judicata or, more precisely, claim preclusion, applies when “(1) the parties are identical

or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the

second claim is based on the same set of transactional facts as the first.” Ammex, Inc.

v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003). First, the parties in this appeal

are identical to those in the 2004 appeal: Mr. Dean on the one hand, the USPS on the

other.     Second, the 2004 appeal proceeded to a final judgment on the merits.

Administrative Judge Miller affirmed Mr. Dean’s removal only after he examined all of

Mr. Dean’s supporting evidence and addressed each of the charges in detail. The

administrative judge explained to Mr. Dean why most of the charges were sustained,

and even found in Mr. Dean’s favor in one regard when he decided that the “agency

failed to prove that the appellant was absent without approved leave on November 4

through 6, 2002.” This is a judgment on the merits. The fact that Mr. Dean did not

petition for review of that judgment in a timely fashion has no effect. See Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995). Third, the claims in this appeal are

based on the same set of facts as the claims in the 2004 appeal, because both appeals

relate to Mr. Dean’s 2003 removal. Therefore, we agree with the MSPB that Mr. Dean’s

claims relating to his 2003 removal are barred by the doctrine of res judicata. To the

extent that Mr. Dean makes other arguments, we find them to be without merit.

                                       CONCLUSION

         For the reasons stated above, we affirm.

                                          COSTS

         Each party shall bear its own costs.


2009-3064                                       4
