                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2006-3425



                                RONALD L. GREEN,

                                                           Petitioner,


                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                           Respondent.



      Ronald L. Green, of Henderson, Nevada, pro se.

       William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kathryn A. Bleecker, Assistant Director.

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                       NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                       2006-3425

                                  RONALD L. GREEN,

                                                                      Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                                      Respondent.

                          ______________________________

                               DECIDED: May 11, 2007
                          ______________________________



Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit
Judge.

PER CURIAM.

       This is yet another chapter in the protracted saga of the petitioner Ronald L.

Green’s unsuccessful attempts to require the United States Postal Service (“Postal

Service”) to rehire him, following his alleged recovery from the disability that led to the

termination of his employment. The story includes three trips to this court, one to the

Ninth Circuit and several to the Merit Systems Protection Board (“Board”), and his filing

of two district court suits against the Postal Service. Green v. Pottter, CV-S-00-0155-

LRH (RJJ) (D. Nev. 2002) (order consolidating Green’s two suits and granting Potter,

the Postmaster General, summary judgment), aff’d Green v. Potter, 70 Fed. Appx. 976

(9th Cir. 2003). In the present case, we reject Green’s numerous challenges to the
Board’s latest decision that rejected his challenges to the Postal Service’s action, and

affirm the Board.

                                            I

      In January, 1994, Green was separated from his job with the Postal Service

because he had a form of depression that disabled him from performing his duties, and

began receiving disability compensation. Thereafter he contended that his disability

had terminated and that the Postal Service improperly had refused to reinstate him.

The Board dismissed his two appeals, and this court affirmed both dismissals. Green v.

U.S. Postal Serv., MSBP Docket No. DE-0752-95-0041-I-1 (Initial Decision, February

23, 1995), aff’d Green v. U.S. Postal Serv., 78 F.3d 602, 1996 WL 39683 (Fed. Cir.

1996) (Table) (“Green I”); Green v. U.S. Postal Serv., MSPB Docket No. SF-0353-98-

0034-I-1 (Initial Decision, Oct. 31 1997), aff’d Green v. Merit Sys. Protection Bd., 194

F.3d 1330, 1999 WL 132219 (Fed. Cir. 1999) (Table) (“Green II”).

      In December, 1997, the Office of Workers’ Compensation Programs terminated

Green’s compensation benefits because he had fully recovered. In January, 1998, he

filed with the Postal Service another request for restoration to duty, and a Department of

Veteran Affairs’ psychiatrist advised the Postal Service that Green was free of mental

illness. Green v. U.S. Postal Serv., 194 F.3d 1330, 1999 WL 127499, at *1 (Fed. Cir.

1999) (Table) (“Green III”), cert. denied, 528 U.S. 912 (1999). A series of administrative

disputes with the Postal Service followed, which culminated in the Postal Service

scheduling an appointment for him with a psychiatrist. When Green failed to keep that

appointment, apparently on the ground that he believed it was unnecessary, the Postal




2006-3425                                   2
Service stopped considering him for re-employment. We sustained the Postal Service’s

action as reasonable. Id. at *2.

       Green underwent further psychiatric examinations, which produced disagreement

among the doctors over whether he was able to return to work. The Postal Service

continued to refuse to restore him to duty, and in 2005 he appealed the Postal Service’s

latest such ruling to the Board.

       The full Board affirmed and modified the administrative judge’s initial decision

(rendered after an evidentiary hearing on one of Green’s contentions) rejecting Green’s

challenges to the Postal Service’s refusal to reinstate him. The Board rejected Green’s

contention that the Postal Service had violated the Uniformed Services Employment

Rights Act of 1994 and the Veteran’s Employment Opportunites Act of 1998. It ruled

that his challenge to the Postal Service’s failure to reemploy him in 1998 was barred by

res judicata and untimeliness.

                                           II

       Green presents a potpourri of challenges to the Postal Service’s refusal to

reemploy him and the Board’s affirmance of those actions. We have considered but

have rejected all of these contentions. Only four of them warrant any discussion, and

those but briefly.

       A. Green contends that the Postal Service’s refusal to reemploy him violated two

federal statutes. One was the Uniform Services Employment Rights Act of 1998, 38

U.S.C. § 4311, under which a veteran claiming discrimination in employment must show

that his military status was “a ‘motivating factor’” in the Agency’s employment action

against him. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).




2006-3425                                  3
Green has shown nothing that even suggests, let alone establishes, that his military

service (completed more than twenty years earlier) had anything to do with the Postal

Service’s refusal to rehire him.    In these circumstances, the Board’s administrative

judge did not abuse his broad discretion over the admission of evidence in refusing to

permit Green to testify on his claim under this statute.

       The other statute was the Veterans Preference Act, which, in conjunction with

Postal Service’s Employee and Labor Relations Manual (“ELM”), requires the Postal

Service to give a veteran a preference in employment when he recovers from a

compensable injury more than a year after his disability compensation began. ELM

§ 546.131. An implementing regulation, 5 C.F.R. § 353.301(b), requires that to obtain

such priority the veteran must request employment within 30 days of the cessation of

compensation benefits.     Although Green initially complied with that requirement by

requesting reemployment within 30 days after he ceased receiving benefits on

December 15, 1997, those proceedings terminated when the Postal Service stopped

considering his application, because Green had failed to appear for his scheduled

psychiatric examination—an action this court upheld as reasonable. Green III at *2, *5.

       The Veterans Preference Act request requirement is subject to the Board’s

general regulatory requirement that “a restoration appeal must be filed within 30 days

after the effective date of the action being appealed or 30 days after the date of receipt

of the agency’s decision, whichever is later,” 5 C.F.R. § 1201.22(b), “unless the

appellant demonstrates good cause for the delay.”          Id. § 1201.22(c).   The Board

properly concluded that Green’s ensuing appeals to it were untimely because they were




2006-3425                                    4
not filed within 30 days of the Postal Service’s rulings he was challenging, and that he

had not shown the requisite good cause.

       B. Green challenges the Postal Service’s refusal to reinstate him in 1998. The

Board correctly held that our 1999 decision upholding that action was res judicata of this

claim, and required its rejection. This case satisfied the three requirements for res

judicata set forth in International Air Response v. United States, 302 F.3d 1363, 1368

(Fed. Cir. 2002); (1) the parties in this case and the earlier one are identical; (2) the

previous decision was a final judgment on the merits; and (3) the present claim is based

on the same set of transactional facts as the claim previously adjudicated, i.e., the

Postal Service’s refusal to reemploy him. Green III at *3; see also, Spruill v. Merit Sys.

Protection Bd., 978 F.2d 679, 686 (Fed. Cir. 1992) (dismissal for failure to state a claim

is a decision on the merits).

       C. Green contends that the Postal Service exceeded its authority when in 1998 it

undertook independently to determine whether Green was qualified to return to work,

after the Office of Workers’ Compensation Programs terminated his disability

compensation upon ruling that his disability had terminated. Green relies upon 5 U.S.C.

§ 8128 (b), which provides that the action of the Secretary of Labor or his designatee (in

this case the Office of Workers’ Compensation Programs), “in awarding or denying

[disability] payment” “is (1) final and conclusive for all purposes and with respect to all

questions of law and fact; and (2) not subject to review by another official of the United

States or by a court by mandamus or otherwise.” These provisions, however, preclude

review of the Secretary’s allowance or denial of disability payments—here the

termination of Green’s disability payments. They do not preclude the Postal Service




2006-3425                                   5
from itself determining whether a disabled former employee whose disability payments

have been terminated is qualified to return to work. Cf. Minor v. Merit Sys. Protection

Bd., 819 F.2d 280, 283 (Fed. Cir. 1987) (“a decision of OWCP or the Employees’

Compensation Appeal Board ‘does not bind’ the MSPB acting within its own separate

statutory sphere of deciding the propriety of restoration”); Nat’l Assoc. of Letter Carriers

v. U.S. Postal Serv., 272 F.3d 182 (3rd Cir. 2001) (holding that the arbitrator of an

employee’s wrongful termination claim was not bound by the factual conclusions made

by the Office of Workers’ Compensation).

                                      CONCLUSION

       The decision of the Board is

                                       AFFIRMED.




2006-3425                                    6
