                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                         2014 MSPB 82

                             Docket No. DE-1221-14-0012-W-1

                                        Fred Johnson,
                                          Appellant,
                                               v.
                             Department of Veterans Affairs,
                                            Agency.
                                        October 30, 2014

           Fred Johnson, Aurora, Colorado, pro se.

           Thomas R. Kennedy, Esquire, Denver, Colorado, for the agency.

                                           BEFORE

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



                                    OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that dismissed this
     individual right of action (IRA) appeal for lack of jurisdiction. For the following
     reasons, we VACATE the initial decision and DISMISS the appeal based on the
     doctrine of res judicata.

                                        BACKGROUND
¶2         After the Office of Special Counsel (OSC) closed out the appellant’s
     complaint alleging that the agency had removed him in 2009 in reprisal for
     whistleblowing, the appellant filed a September 18, 2013 IRA appeal alleging
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     that the agency removed him based on disclosures protected under the
     Whistleblower Protection Act (WPA). Initial Appeal File (IAF), Tab 1 at 3, 5,
     Tab 2 at 1-2.
¶3         The administrative judge issued a show cause order informing the appellant
     that he had previously challenged his removal and alleged reprisal for
     whistleblowing in a Board appeal in Johnson v. Department of Veterans Affairs,
     MSPB Docket No. DE-0752-12-0459-I-1, which had been dismissed for lack of
     jurisdiction on June 4, 2013, because the appellant had made a prior election to
     grieve his removal, and which became final on July 9, 2013, when neither party
     filed a petition for review. IAF, Tab 6 at 1-2. The administrative judge noted
     that it appeared that the Board similarly lacks jurisdiction over this appeal due to
     the appellant’s election to grieve his removal and afforded him an opportunity to
     submit evidence and argument addressing this issue. Id. at 3.
¶4         After the parties filed their responses to the show cause order, IAF, Tabs
     7-8, and based on the written record, the administrative judge dismissed the
     appeal for lack of jurisdiction, IAF, Tab 9, Initial Decision (ID) at 2-3.      The
     administrative judge found that the appellant had filed a prior Board appeal of his
     removal on August 8, 2012, and that the initial decision issued in that case
     dismissed the appeal for lack of jurisdiction because the appellant had made an
     election under 5 U.S.C. § 7121 to pursue his claims through the negotiated
     grievance procedures, which precluded a subsequent Board appeal. ID at 1-2.
     The administrative judge found that the agency’s decision letter effecting the
     removal provided adequate notice to the appellant of his election rights and that it
     was undisputed that the appellant had filed a timely grievance under the
     negotiated grievance procedures. ID at 3. Thus, the administrative judge held
     that the timely filing of the grievance constituted an election under 5 U.S.C.
     § 7121(g)(2) and that the Board lacks jurisdiction over this IRA appeal. ID at 3.
                                                                                     3

                                        ANALYSIS
¶5           On petition for review, the appellant reiterates the arguments he made
     below in response to the administrative judge’s show cause order.       Compare
     Petition for Review (PFR) File, Tab 1, with IAF, Tab 7. The appellant asserts
     that his attorney, during the arbitration hearing that followed his grievance, did
     not address the fact that the appellant contacted his congressional representative
     to complain about the agency’s abuse of authority and that the attorney did not
     file a petition for review of the arbitrator’s decision with the Board. PFR File,
     Tab 1 at 5-6. The appellant therefore contends that collateral estoppel should not
     be applied to his whistleblowing claim because it was not actually litigated. Id.
     at 5-6, 8. The appellant also contends that 5 U.S.C. § 7121 does not apply to him
     because his claims of whistleblowing were not addressed during the arbitration
     proceedings and that he lacked the ability to make a knowing, binding, and
     informed election of remedies between filing a grievance and filing a complaint
     with OSC. PFR File, Tab 1 at 10-11. The appellant also submits documents that
     are already included in the record below. See PFR File, Tabs 2, 4; IAF, Tabs 1-2,
     6, 9.
¶6           An employee who has been subjected to an action that is appealable to the
     Board and alleges that he has been affected by a prohibited personnel practice
     other than a claim of discrimination under 5 U.S.C. § 2302(b)(1) may elect to
     pursue a remedy through one, and only one, of the following remedial processes:
     (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant
     to the provisions of the negotiated grievance procedure; or (3) a complaint
     following the procedures for seeking corrective action from OSC under 5 U.S.C.
     §§ 1211-1222.     Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14
     (2013); see 5 U.S.C. § 7121(g). The Board has recently held that, for adverse
     actions appealable to the Board under chapters 43 and 75, an employee’s election
     of remedies under 5 U.S.C. § 7121(g) must be knowing and informed and, if it is
     not, it will not be binding upon the employee. Agoranos, 119 M.S.P.R. 498, ¶ 16.
                                                                                       4

     In Agoranos, the Board found that Mr. Agoranos’s filing of an OSC complaint
     did not constitute a valid, informed election under 5 U.S.C. § 7121(g) and,
     because Mr. Agoranos had not made a knowing and informed waiver of his
     chapter 43 rights, the Board remanded the chapter 43 removal appeal and the IRA
     appeal concerning other alleged personnel actions to the regional office for
     adjudication on the merits. Agoranos, 119 M.S.P.R. 498, ¶¶ 17-18.
¶7         On review, the appellant does not challenge the administrative judge’s
     finding that he filed a grievance with the agency regarding his removal before
     filing the complaint with OSC that led to his filing of this IRA appeal. Under
     Agoranos, however, we find that the appellant’s filing of a grievance of his
     removal did not constitute a valid, informed election of remedies. See id., ¶ 17.
     In its decision letter, the agency informed the appellant that he could appeal the
     removal action to the Board or grieve under the negotiated grievance procedures
     but not both.   Johnson v. Department of Veterans Affairs, MSPB Docket No.
     DE-0752-12-0459-I-1 (Removal Appeal), IAF, Tab 2 at 4.            The agency also
     informed him that he would be deemed to have exercised his option to appeal the
     action to the Board or grieve under the negotiated grievance procedure when he
     timely initiated action to appeal to the Board or timely filed a grievance in
     writing. Id. As in Agoranos, 119 M.S.P.R. 498, ¶ 17, the agency removed the
     appellant without notifying him of his right to file a request for corrective action
     with OSC under subchapters II and III of chapter 12 of Title 5. It also did not
     notify him of the effect that filing a grievance would have on his right to file a
     complaint before OSC and an IRA appeal before the Board.            Nothing in the
     record reflects that the appellant made a knowing and informed waiver of his
     right to file a complaint seeking corrective action from OSC and the Board. See
     Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 7 (2013). Thus, we
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     find that the election requirement of 5 U.S.C. § 7121(g) does not prevent the
     Board from finding that it has jurisdiction over this appeal. *
¶8            We recognize that the agency’s decision letter appears to have complied
     with the Board’s regulations in effect at that time regarding notice of appeal
     rights to the Board. See 5 C.F.R. § 1201.21(a)(4) (2009). Those regulations were
     amended in November 2012 to provide that an agency that issues a decision
     notice to an employee on a matter that is appealable to the Board must provide
     the employee with, among other things, notice of any right to file a grievance or
     seek correction action under subchapters II and III of 5 U.S.C. chapter 12. See
     5 C.F.R. § 1201.21(d) (2013). Nevertheless, regardless of the nature of the notice
     provided to the appellant by the agency, the choice of remedy provision of
     5 U.S.C. § 7121(g) has been in effect since the 1994 amendments to the WPA.
     See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013). The
     ultimate question is whether the appellant made a knowing and informed election.
     See Agoranos, 119 M.S.P.R. 498, ¶ 16. There is no indication that the appellant
     was aware, when he elected to grieve his removal, that he could have instead
     sought corrective action from OSC and the Board.
¶9            A Board appeal that is not barred by section 7121(g) may, however, be
     barred     under   the   doctrine   of   res   judicata,   Collins   v.   Department   of

     *
       The Board has jurisdiction over an IRA appeal if the appellant has exhausted his or
     her administrative remedies before OSC and makes nonfrivolous allegations that:
     (1) he engaged in whistleblowing activity by making a protected disclosure, and (2) the
     disclosure was a contributing factor in the agency’s decision to take or fail to take a
     personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
     Cir. 2001). It appears that the appellant has met these requirements. See IAF, Tab 1
     at 5 (allegation that the agency removed the appellant after he complained to his
     congressional representative about certain agency actions, including an alleged assault
     by a supervisor), Tab 7 at 6-7 (contention that the agency removed the appellant after
     he disclosed to his congressional representative an alleged assault by a supervisor and
     an abuse of authority by the agency); see also Lewis v. Department of Commerce,
     101 M.S.P.R. 6, ¶ 11 (2005) (a disclosure that an assault occurred is a disclosure of a
     violation of law, rule, or regulation).
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      Transportation, 89 M.S.P.R. 582, ¶ 13 (2001), which the agency raised as a
      defense in this case, IAF, Tab 8 at 6. Under that doctrine, 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. Collins, 89 M.S.P.R. 582, ¶ 13. Thus,
      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.     Peartree v. U.S. Postal
      Service, 66 M.S.P.R. 332, 337 (1995).
¶10         In Giove v. Department of Transportation, 89 M.S.P.R. 560, ¶¶ 2, 4 (2001),
      aff’d, 50 F. App’x 421 (Fed. Cir. 2002), the appellant filed a grievance regarding
      his removal. The grievance proceeded to arbitration, and the arbitrator held a
      hearing before issuing an award denying the grievance on the merits. Id., ¶¶ 2, 4.
      The U.S. Court of Appeals for the Federal Circuit affirmed the arbitrator’s award.
      Id., ¶ 4. Under these circumstances, the Board held that the appellant’s Board
      appeal regarding his removal was barred by the doctrine of res judicata because it
      was a second action against the same agency based on the same set of facts giving
      rise to his right to seek relief from his removal by the agency, each party was
      afforded a full opportunity to present evidence and testimony before the
      arbitrator, and adjudicatory bodies of competent jurisdiction, specifically the
      arbitrator and the Federal Circuit, issued final judgments on the merits of the
      removal action. Id., ¶¶ 15-16.
¶11         Here, as in Giove, the appellant filed a grievance regarding his removal,
      and an arbitrator denied that grievance on the merits. There is no indication that
      the appellant could not have raised a claim of reprisal for whistleblowing in the
      grievance process. See Removal Appeal, IAF, Tab 9 at 33-39 (Master Agreement
      between the Department of Veterans Affairs and the American Federation of
      Government Employees).      In fact, the appellant has asserted that his attorney
                                                                                         7

      neglected to raise such a claim before the arbitrator, not that the Master
      Agreement prevented him from raising such a claim. PFR File, Tab 1 at 5. Thus,
      the appellant’s allegation that the agency removed him in reprisal for
      whistleblowing is barred by the doctrine of res judicata because the prior
      judgment of the arbitrator was rendered by a forum with competent jurisdiction,
      the prior judgment was a final judgment on the merits, and the same cause of
      action and the same parties or their privies were involved in both cases. See
      Brown v. Department of the Navy, 102 M.S.P.R. 377, ¶ 10 (2006) (dismissing an
      IRA appeal based on res judicata); Giove, 89 M.S.P.R. 560, ¶¶ 14-16.
¶12         Accordingly, we DISMISS this appeal based on the doctrine of res judicata.

                                             ORDER
¶13         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
            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
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may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. 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 is
contained 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
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Protection Board 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.
