                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES F. GIBSON,                                DOCKET NUMBER
                   Appellant,                        SF-1221-13-0442-W-1

                  v.

     DEPARTMENT OF                                   DATE: August 21, 2014
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James F. Gibson, Reno, Nevada, pro se.

           Sara Jo Prose, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal in part due to res judicata
     and in part for lack of jurisdiction. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with 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. See 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, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review. We MODIFY
     the initial decision to the extent that the administrative judge determined that the
     appellant was barred from challenging his January 1989 termination on res
     judicata grounds; instead, this claim should have been dismissed because the
     termination action predated the effective date of the Whistleblower Protection Act
     (WPA). Except as expressly modified by this Final Order, we AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In 1989, the agency terminated the appellant during his probationary period.
     He filed an equal employment opportunity (EEO) complaint, and he was
     reinstated as part of a settlement agreement.       Gibson v. Card, EEOC DOC
     03920084, 1992 WL 1374211 at *1 (June 29, 1992). In 1991, the appellant was
     removed from his Aviation Safety Inspector position on two charges: failure to
     satisfactorily complete flight course 20702, and insubordination in not complying
     with the agency’s direction that he complete a reexamination of his airman
     competency. Id. The appellant filed a Board appeal. The administrative judge
     sustained the agency’s removal and found that the appellant failed to prove that
     he was removed based on reprisal for his prior EEO activity. Id. The Board
                                                                                          3

     denied the petition for review, and the Equal Employment Opportunity
     Commission affirmed the Board’s decision regarding the discrimination claim.
     Id. In 2012, the appellant filed an Office of Special Counsel complaint, and in
     2013, he filed an IRA appeal, claiming that his 1989 termination, his 1991
     removal, and other actions constituted reprisal for prior whistleblowing activity.
     See, e.g., Initial Appeal File (IAF), Tabs 1, 5, 7, 10, 15, 17-18, 24, 26, 31, 34.
¶3         In the initial decision, the administrative judge dismissed the appeal, in part
     based on res judicata, and in part for lack of jurisdiction. IAF, Tab 35, Initial
     Decision (ID). The appellant has filed a petition for review; the agency has filed
     a response; and the appellant has filed a reply. Petition for Review (PFR) File,
     Tabs 1, 5-6. In the appellant’s lengthy petition for review, he appears to review
     the factual basis for his complaints and makes other broad assertions of error.
¶4         Under the doctrine of res judicata, a valid, final judgment on the merits of
     an action bars a second action involving the same parties or their privies based on
     the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337
     (1995). 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. Id. The Board has held that
     generally an individual who appeals his removal directly to the Board is barred by
     res judicata from bringing, after exhausting his administrative remedies, a second
     whistleblower appeal challenging the same removal action. Ryan v. Department
     of the Air Force, 113 M.S.P.R. 27, ¶ 13 (2009) (citing Sabersky v. Department of
     Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir.
     2003)).   Based on this precedent, we discern no error with the administrative
     judge’s conclusion that the appellant’s earlier Board appeal regarding his 1991
     removal bars him from raising a whistleblower appeal challenging the same
     action in this matter.
                                                                                     4

¶5         In the initial decision, the administrative judge also determined that the
     appellant was barred by res judicata from pursuing a claim related to his 1989
     termination because the subsequent EEO complaint was resolved by a settlement
     agreement. See ID at 4, 6. As support for her conclusion, the administrative
     judge cited Ford-Clifton v. Department of Veterans Affairs, 661 F.3d 655 (Fed.
     Cir. 2011), and Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir. 1993). See
     ID at 4. We find that both of these cases are distinguishable and conclude that it
     is not appropriate to dismiss this claim on the grounds of res judicata.
¶6         In Ford-Clifton, our reviewing court noted that it was “widely agreed that
     an earlier dismissal based on a settlement agreement constitutes a final judgment
     on the merits in a res judicata analysis.”    However, the court in Ford-Clifton
     found that the parties’ settlement agreement was “lawful” and “a full and
     complete settlement of all issues in the appeal.”       Ford-Clifton, 661 F.3d at
     660-61. Here, however, the parties’ settlement agreement, which resolved the
     appellant’s EEO complaint, is not in the record. Although it appears that the
     agreement provided for the appellant’s reinstatement and reassignment, and it
     also included benefits and back pay, Gibson, EEOC DOC 03920084, 1992 WL
     1374211 at *1; IAF, Tab 5 at 11, we cannot tell, and neither party represents,
     whether the agreement constituted a “full and complete settlement” or contained
     similar language regarding the 1989 termination and any other possible claims
     arising at that time.
¶7         In Mays, the appellant’s union settled his grievance regarding a 21-day
     suspension, he subsequently filed a Board appeal regarding that same action, and
     the court concluded that the Board lacked jurisdiction over the appeal because the
     appellant did not specifically reserve in his grievance the right to file a Board
     appeal. Mays, 995 F.2d at 1057-60. Because the parties’ settlement agreement is
     not in the record, we cannot ascertain whether the appellant waived his Board
     appeal rights regarding his termination or any other actions during that time
     frame. For these reasons, we are not persuaded by the administrative judge’s
                                                                                         5

     reliance on these cases and cannot conclude that the appellant’s 1989 termination
     is barred by res judicata.     See Williams v. Department of Health & Human
     Services, 112 M.S.P.R. 628, ¶ 9 (2009) (holding that a settlement agreement that
     does not involve an examination of the merits of an agency action does not
     constitute a judgment on the merits for res judicata purposes).
¶8         We note, however, that the appellant’s January 3, 1989 termination predates
     the July 9, 1989 effective date of the WPA.        Lundberg v. Department of the
     Navy, 43 M.S.P.R. 382, 385 (1990). Accordingly, the appellant is barred from
     pursuing this action and any other personnel action that allegedly occurred before
     the effective date of the WPA. See McVay v. Arkansas Nat. Guard, 80 M.S.P.R.
     120, 123 (1998) (agreeing with the administrative judge that the letter of
     reprimand the appellant received cannot serve as the basis for an IRA appeal
     because it was issued on May 4, 1989); Lundberg, 43 M.S.P.R. at 385 (because
     the appellant received notice of his pending agency proceeding nearly 4 years
     before the effective date of the WPA, the WPA does not apply).
¶9         We also discern no error with the administrative judge’s decision to dismiss
     the appeal for lack of jurisdiction because the appellant did not nonfrivolously
     allege that the agency took a personnel action against him. ID at 5-7. In the
     initial decision, the administrative judge discussed the following other personnel
     actions that the appellant alleged were taken against him:             (1) his 2007
     termination from a private company; (2) his belief that his former supervisor,
     J.M., made negative comments about his flying ability and other disparaging
     remarks over the years, which “effectively block[ed] him from obtaining a job in
     the aviation industry”; (3) an EEO counselor told him in May 2012 that agency
     employee J.M. said negative things about him during an EEO investigation; and
     (4) his efforts regarding a 1993 checkride (also called a practical test), when he
     had to enroll in refresher training at flight school. ID at 6-7. In relevant part, the
     administrative judge noted that the whistleblower statutes prohibit a “personnel
     action” from being taken “with respect to any employee or applicant for
                                                                                            6

      employment,” 5 U.S.C. § 2302(b)(8), and the appellant was not an employee or
      applicant for employment at any time after his 1991 removal, when these
      personnel actions allegedly occurred. See ID at 6-7. She also noted that J.M.’s
      alleged negative comments did not constitute a personnel action. ID at 7.
¶10         We discern no error with the administrative judge’s decision in this regard.
      In Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 10 (2008), the
      Board held that an action taken by a private sector employer “does not meet the
      definition of ‘personnel action’ since it was not taken with respect to an employee
      in a covered position in an agency or a governmental corporation,” and it
      affirmed the administrative judge’s dismissal for lack of jurisdiction. Similarly,
      here the Board lacks jurisdiction over any actions taken by the private employer
      in 2007.
¶11         The appellant also has not persuaded us that the administrative judge erred
      in her analysis of the remaining actions because, at the time of these alleged
      actions, the appellant was neither an “employee” nor an “applicant” as set forth
      in 5 U.S.C. §§ 2302(a)(2), (b)(8). See, e.g., Nasuti v. Merit Systems Protection
      Board, 376 F. App’x 29, 33-34 (Fed. Cir. 2010) (holding that the agency’s
      issuance of a Standard Form 50 did not qualify as a “personnel action” under the
      WPA because it occurred after the appellant was no longer employed by the
      agency). 2 Moreover, the appellant has not identified, and we are not aware of,
      any legal authority to support the proposition that negative references by J.M.
      constitute a personnel action under the WPA. 3

      2
       Although Nasuti is an unpublished decision, the Board may rely on unpublished U.S.
      Court of Appeals for the Federal Circuit decisions if it finds the court’s reasoning
      persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001).
      We find the court’s reasoning persuasive.
      3
        Because we agree with the administrative judge that the appellant has not identified a
      personnel action under the WPA, we need not address whether, among other things, the
      appellant exhausted his administrative remedies or whether he made a nonfrivolous
      allegation of a protected disclosure. See Yunus v. Department of Veterans Affairs,
      242 F.3d 1367, 1371 (Fed. Cir. 2001).
                                                                                             7

¶12         Finally, the appellant includes documentation on review, including an
      affidavit from H.H.P, his March 1990 performance appraisal, an On-the-Job
      Training Progress Report, a 1990 Order Granting Request for Stay regarding the
      “609” decertification of the appellant’s airman’s pilot’s license, 4 and his May
      2013 discovery requests to the agency. See PFR File, Tab 1, Exhibits. These
      documents were in the record below and do not constitute new evidence, or they
      do   not        change   the     outcome     on    review.         Russo    v.   Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the
      Interior, 3 M.S.P.R. 247, 256 (1980).             We have considered the appellant’s
      remaining arguments, but they do not warrant a different outcome.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims     of    prohibited    personnel   practices   under   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


      4
       Gibson v. Department of Transportation, MSPB Docket No. SF122190S0721, Stay
      Order (Nov. 9, 1990), found at IAF, Tab 26 at 21-25.
                                                                                    8

may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. 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. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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
iscontained 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 a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
                                                                           9

neither endorses the services 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.
