                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2008-3285



                               JOSEPH P. CARSON,

                                                    Petitioner,

                                         v.

                           DEPARTMENT OF ENERGY,

                                                    Respondent.

      Jospeh P. Carson, of Knoxville, Tennessee, pro se.

       Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant
Director.

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                         NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                          2008-3285

                                    JOSEPH P. CARSON,

                                                                   Petitioner,

                                              v.

                                DEPARTMENT OF ENERGY,

                                                                  Respondent.


Petition for review of the Merit Systems Protection Board in consolidated cases
AT-1221-96-0948-C-7, AT-1221-98-0250-C-7, and AT-1221-98-0623-C-7.
                            __________________________

                              DECIDED: October 9, 2009
                              __________________________


Before MAYER, LINN, and PROST, Circuit Judges.

PER CURIAM.

          Joseph P. Carson appeals a final decision of the Merit Systems Protection Board

dismissing both his petition for enforcement and his individual right of action (“IRA”)

appeal as barred by res judicata. See Carson v. Dep’t of Energy, Nos. AT-1221-98-

0250-C-7, AT-1221-96-0948-C-7, AT-1221-98-0623-C-7 (M.S.P.B. Nov. 21, 2007). We

affirm.

          The doctrine of res judicata serves to “relieve parties of the cost and vexation of

multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,

encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). The
doctrine is applied when: (1) a 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 were involved in both cases. Carson v. Dep’t of

Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005) (“2005 Carson Decision”). Since all three

criteria are satisfied here, the board correctly determined that Carson’s appeal is barred

by res judicata.

       The long history of Carson’s many claims against the agency is summarized in

our 2005 Carson Decision and need not be repeated here. See 398 F.3d at 1371-75.

The central thrust of his present claim is that the agency failed to comply with the

board’s order in Carson v. Dep’t of Energy, 85 M.S.P.R. 171 (2000) (“Reassignment

Order”), which required the agency to: (1) cancel Carson’s reassignment, (2) restore

him to the full range of duties and responsibilities of his previous position, and (3)

comply with its order within twenty days.        The agency complied with this order by

cancelling Carson’s reassignment and restoring the full range of his previous job

responsibilities.   Carson contends, however, that the agency, in retaliation for his

protected whistle-blowing activities, failed to act within twenty days of the board’s order.

        Carson’s claims of retaliatory animus related to the agency’s alleged failure to

comply with the board’s Reassignment Order were, or should have been, raised in his

prior appeals. In his 2005 appeal to this court, Carson asserted that the agency violated

the Reassignment Order by failing to consider his application for two GS-14 positions at

the agency’s Oak Ridge facility. See 2005 Carson Decision, 398 F.3d at 1375. We

concluded, however, that his claims were barred by res judicata since the board, in

Carson v. Dep’t of Energy, 88 M.S.P.R. 260 (2001), had conclusively determined that




2008-3285                                    2
the agency had fully complied with the Reassignment Order. We explained that “the

Board’s unappealed Final Order . . . [holding] . . . that the Agency had complied with the

full scope of relief accorded Carson in his original IRA appeal . . . precludes all claims of

non-compliance that could have been raised in his original enforcement action.” Id. at

1376.

        A similar analysis applies here. Because Carson has already litigated the issue

of the agency’s compliance with the Reassignment Order, he is barred from now

asserting that the agency’s failure to act within the prescribed twenty-day period

constituted a violation of that order. Res judicata serves to bar claims that were not, but

should have been, advanced in an earlier proceeding:

        The preclusive effects of former adjudication are . . . referred to
        collectively by most commentators as the doctrine of “res judicata.” Res
        judicata is often analyzed further to consist of two preclusion concepts:
        “issue preclusion” and “claim preclusion.” Issue preclusion refers to the
        effect of a judgment in foreclosing relitigation of a matter that has been
        litigated and decided. This effect is also referred to as direct or collateral
        estoppel. Claim preclusion refers to the effect of a judgment in foreclosing
        litigation of a matter that never has been litigated, because of a
        determination that it should have been advanced in an earlier suit. Claim
        preclusion therefore encompasses the law of merger and bar.

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (internal

citations omitted).

        Contrary to Carson’s assertions, a “different agency party” was not involved in his

prior claims. The Department of Energy was the respondent in his prior appeals.

        We have considered Carson’s remaining arguments as to why the doctrine of res

judicata should not apply to his present appeal, but find them unpersuasive.




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