       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                MARSHA L. PAYTON,
                    Petitioner,
                           v.
    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
              __________________________

                      2012-3193
              __________________________

   Petition for review of the Merit Systems Protection
Board in No. AT1221120080-W-1.
              ___________________________

              Decided: January 15, 2013
             ___________________________

   MARSHA L. PAYTON, of Holly Hill, Florida, pro se.

    MICHAEL N. O’CONNELL, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
PATRICIA M. MCCARTHY, Assistant Director.
               __________________________
PAYTON   v. DHS                                           2


  Before PROST, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
    This petition is yet another brought by Marsha L.
Payton (“Ms. Payton”) related to her removal from the
position of Management Program Specialist with the
United States Customs and Border Protection in 2004.
By our count, she has filed eight such petitions for review.
We dismissed Ms. Payton’s first petition in March 2006,
and denied her next four petitions in November 2008.
Because the Merit Systems Protection Board (“the Board”)
correctly found Ms. Payton’s latest petition barred by the
doctrine of claim preclusion, we AFFIRM.
                       BACKGROUND
    Ms. Payton was employed as a Management Program
Specialist for the United States Customs and Border
Protection within the Department of Homeland Security
(“the agency”). In 2004, she was removed from duty for
five charges of misconduct: absence without leave, failure
to follow instructions, insubordination, unprofessional
conduct, and reckless disregard for the safety of others.
Ms. Payton appealed her removal to the Board and, after
a hearing, the Board sustained at least four of the charges
and affirmed the removal. See Payton v. Dep’t of Home-
land Sec., Docket No. AT-0752-05-0043-I-1, 99 M.S.P.R.
669 (M.S.P.B Sept. 15, 2005) (Table). In March 2006, Ms.
Payton filed a petition for review of the Board’s decision
with this court, but we dismissed it as untimely filed. See
Payton v. Dep’t of Homeland Sec., Nos. 2008-3158, -3162, -
3163, -3164, slip op. at 2 (Fed. Cir. Nov. 19, 2008).
    Subsequently, in May 2007, Ms. Payton filed another
four appeals with the Board challenging her 2004 removal
on various grounds. In September 2007, the Administra-
tive Judge presiding over the four appeals dismissed each
3                                             PAYTON   v. DHS


for lack of jurisdiction or as barred by the doctrine of
claim preclusion, and the full Board denied Ms. Payton’s
petitions for review of those decisions. See id. We af-
firmed the dismissals in a November 2008 consolidated
decision. See id. at 2-4.
    In 2009, Ms. Payton filed yet another appeal related
to her removal. Ms. Payton had suffered an employment
related injury before she was terminated and, in her 2009
appeal, she challenged the agency’s refusal to restore her
to duty after she was medically cleared to return to work.
An Administrative Judge dismissed the appeal for lack of
jurisdiction because Ms. Payton had been removed for
cause, rather than for a compensable injury, and the
Board subsequently affirmed that decision. See Payton v.
Dep’t of Homeland Sec., Docket No. AT-0353-09-0770-I-1,
113 M.S.P.R. 463 (M.S.P.B. Apr. 1, 2010). In an October
2010 decision, we upheld that dismissal as well. See
Payton v. Dep’t of Homeland Sec., No. 2010-3118, slip op.
at 4 (Fed. Cir. Oct. 7, 2010).
    On October 24, 2011, Ms. Payton filed the present ap-
peal, yet again challenging her 2004 dismissal. She
alleges that the agency improperly removed her in retali-
ation for her protected whistleblowing activities. On
November 4, 2011, the presiding Administrative Judge
issued an order notifying Ms. Payton that her appeal may
be barred by the doctrine of claim preclusion, informing
her of the elements of claim preclusion, and providing her
an opportunity to respond to this concern 1. While Ms.


    1    The Administrative Judge analyzed the issue of
res judicata as a jurisdictional concern. We observe that
this is an incorrect characterization of the doctrine of res
judicata. However, because it was correct to dismiss on
res judicata grounds, the mischaracterization of it as
jurisdictional was harmless error. Gonzalo v. Office of
PAYTON   v. DHS                                           4


Payton filed a response to the Administrative Judge’s
order, she did not respond to his request that she address
the potential jurisdictional bar to her Board appeal.
Accordingly, the Administrative Judge dismissed the
appeal for lack of jurisdiction on November 29, 2011,
holding that Ms. Payton should have raised the retalia-
tion claim in her initial 2004 appeal. See Payton v. Dep’t
of Homeland Sec., Docket No. AT-1221-12-0080-W-1, 118
M.S.P.R. 422 (M.S.P.B July 27, 2011) (Table). The Board
denied a petition for review of the Administrative Judge’s
decision on July 27, 2011. See id. This petition followed.
                   STANDARD OF REVIEW
    Under 5 U.S.C. § 7703(c), the court “shall review the
record and hold unlawful and set aside any agency action,
findings, or conclusions found to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.”
                       DISCUSSION
     The doctrine of claim preclusion prevents parties from
litigating claims that were, or could have been, raised in
an earlier action. See Carson v. Dep’t of Energy, 398 F.3d
1369, 1375 (Fed. Cir. 2005). It applies when “(1) the prior
decision was rendered by a forum with competent juris-
diction; (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.” Id.
Claim preclusion forecloses matters that, although never
litigated, could have been raised in an earlier suit. Id. at


Pers. Mgmt., No. 92-3148, 1992 U.S. App. LEXIS 28839
(Fed. Cir. Oct. 28, 1992).
5                                              PAYTON   v. DHS


1372 n.8 (citing Migra v. Warren City Sch. Dist. Bd. of
Ed., 465 U.S. 75, 77 n.1 (1984)).
    Ms. Payton’s whistleblower retaliation claim meets all
the requirements for claim preclusion. The Board has
jurisdiction to hear claims of retaliation for whistleblower
activities and it could have entertained Ms. Payton’s
claim in 2004 had she raised it. See, e.g., Carson, 398
F.3d at 1374. In 2005, the Board entered a final decision
upholding Ms. Payton’s removal on the merits. See Pay-
ton v. Dep’t of Homeland Sec., Docket No. AT-0752-05-
0043-I-1, 99 M.S.P.R. 669 (M.S.P.B Sept. 15, 2005) (Ta-
ble). And the same cause of action (a challenge to the
2004 removal) and same parties (Ms. Payton and the
agency) were involved in both this and the 2004 appeal.
Accordingly, Ms. Payton’s current appeal is barred under
the doctrine of claim preclusion. In fact, Ms. Payton
asserts in her petition to this court that “[a]ll issues were
addressed” in her prior appeals and she even asks: “Why
am I still addressing court and my cases not complete?”
Informal Br. of Pet’r at 1.
     In her petition to this court, Ms. Payton still does not
address claim preclusion and makes no effort to defend
her right to assert a whistleblower claim at this late date.
Indeed, Ms. Payton seems to raise additional substantive
challenges to her appeal, id. (“There was no desk audit.”);
id. at 2 (“I should not have been removed while the[y] [sic]
pursued an AWOL investigation.”); id. at 2 (“My removal
was falsified.”), but fails to explain why those challenges
would not be subject to the same bar that prevents adju-
dication of the whistleblower claim.
                       CONCLUSION
    Because Ms. Payton’s whistleblower retaliation claim
could have been raised in her 2004 appeal of the agency’s
removal decision, the present appeal is barred under the
PAYTON   v. DHS                                         6


doctrine of claim preclusion. The Board’s dismissal of the
present appeal is therefore affirmed.
                      AFFIRMED
                         COSTS
   Each party shall bear its own costs.
