                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEITH E. BROWN,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-13-0336-C-2

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: December 22, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 

           Keith E. Brown, Stockton, California, pro se.

           Christine J. Kim, Esquire, Stockton, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision, which denied his petition for enforcement.            Generally, we grant
     petitions such as this one only in the following circumstances: the initial decision
     contains erroneous findings of material fact; the initial deci sion is based on an
     erroneous interpretation of statute or regulation or the erroneous application of

     
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent wi th required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the appellant has not established any basis under section 1201.115 for granting
     the petition for review.    Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                     BACKGROUND
¶2        The following facts, as set forth in the compliance initial decision, are
     undisputed.   The agency indefinitely suspended the appellant from his Police
     Officer position, the administrative judge reversed the indefinite suspension, and
     the Board affirmed the administrative judge’s decision. Compliance File (CF),
     Tab 5, Compliance Initial Decision (CID) at 1-2. The Board ordered the agency
     to cancel the suspension, retroactively restore him effective April 1, 2013, and
     pay him the correct amount of back pay and benefits. CID at 2. The appellant
     filed a petition for enforcement, which the administrative judge denied, and the
     Board affirmed the administrative judge’s decision. Id. Among other things, the
     Board found that the agency paid him the correct amount of back pay, he was
     properly placed on administrative leave following reversal of the indefinit e
     suspension, and he was not entitled to overtime or night differential pay during
     this period or any additional pay or differentials for the period before the
     indefinite suspension. CID at 2-3.
¶3        The appellant filed a second petition for enforcement allegi ng that the
     agency withheld investigative files and owed him additional back pay covering
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     the period before the indefinite suspension and for the period of administrative
     leave following reversal of the indefinite suspension.       CID at 2.       In the
     compliance initial decision, the administrative judge concluded that the appellant
     was barred by res judicata from raising any issues that were or could have been
     raised in the first petition for enforcement proceeding.       CID at 2-3.      The
     administrative judge noted that the only new issue raised by the appellant was the
     allegation involving withheld investigative files; he found, however, that this
     allegation was without merit because the Board did not order the agency to
     provide these files, the appellant had obtained the files, and the existence or
     content of the files did not impact the calculation of back pay or other requested
     relief. CID at 3-4. In light of the administrative judge’s decision, he did not
     address whether the appellant’s petition for enforcement was timely filed. CID at
     4.
¶4        The appellant has filed a request to reopen this matter, which the Office of
     the Clerk of the Board construed as a petition for review of the second
     compliance initial decision.    Compliance Petition For Review (CPFR) File,
     Tabs 1-2. The agency has not filed a response. The appellant also has filed a
     motion to waive the time limit for his petition for review. CPFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On petition for review, the appellant asserts that he obtained new evidence,
     in the form of a declaration made under penalty of perjury from the deciding
     official in the underlying indefinite suspension action, which shows the agency’s
     intent to disregard the Board’s order.    CPFR File, Tab 1 at 2; see id. at 7
     (explaining that the appellant “was not issued a [Common Access Card] as the
     agency had no plans to bring him back to work after reinstatement” ).
     The appellant contends that by placing him on administrative leave from June 27,
     2013, through February 4, 2014, the agency “withheld the correct back pay, shift
     differential, overtime, premium pay, and holiday pay.” Id. at 3.
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¶6        Even if we assume for the purposes of our analysis that this declaration
     constitutes “new” evidence, the Board will not generally grant a petition for
     review based on new evidence absent a showing that it is of sufficient weight to
     warrant an outcome different from that of the initial decision . Russo v. Veterans
     Administration, 3 M.S.P.R. 345, 349 (1980). We agree with the administrative
     judge that the issues regarding back pay, shift differential, overtime pay, premium
     pay, and holiday pay were precluded by res judicata. CID at 2-3. Importantly,
     these issues were or could have been raised in the first petition for enforcement
     proceeding, the decision on that petition for enforcement was rendered by the
     Board, which is a forum with competent jurisdiction, the prior decision was a
     final judgment on the merits, and the same cause of action and the same parties
     were involved in both cases.            Senyszyn v. Department of the Treasury,
     113 M.S.P.R. 453, ¶ 9 (2013) (citing Carson v. Department of Energy,
     109 M.S.P.R. 213, ¶ 24 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009)). The
     appellant does not appear to challenge the administrative judge’s analysis
     regarding the investigative files, and we discern no error with his decision in this
     regard.
¶7        In light of our disposition, we need not resolve whether the appellant’s
     petition for review was timely filed.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request further review of this final decision.

     Discrimination Claims: Administrative Review
           You may request review of this final decision on your discrimination
     claims by the Equal Employment Opportunity Commission (EEOC). 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:
                                                                                  5

                           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:
                           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 you r
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 U.S. 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 ba sed 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
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       Jennifer Everling
                                       Acting Clerk of the Board
Washington, D.C.
