         NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                  ______________________

             DARRALYN C. COUNCIL, SR.,
                    Petitioner,

                             v.

        DEPARTMENT OF VETERANS AFFAIRS,
                     Respondent.
               ______________________

                        2012-3168
                  ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT1221120027-W-1.
                ______________________

                  Decided: April 4, 2013
                  ______________________

      DARRALYN C. COUNCIL, SR., of Orlando, Florida, pro
se.

    RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and FRANKLIN E. WHITE, JR., Assistant Director.
                 ______________________
2                                 DARRALYN COUNCIL   v. DVA


    Before NEWMAN, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
                        DECISION
    Darralyn C. Council, Sr., appeals the decision of the
Merit Systems Protection Board affirming his removal
from employment with the Department of Veterans
Affairs (“DVA”). Because this is not Mr. Council’s first
adjudicated appeal of that removal decision, we affirm the
Board’s decision that his appeal is barred by res judicata.
                      BACKGROUND
    Mr. Council began his federal employment at the
Veterans Affairs Medical Center (“VAMC”) in Houston,
Texas, where he served as a Prosthetic Representative
Trainee. On May 13, 2007, Mr. Council was demoted to
the position of Purchasing Agent. Later that year he was
hired as a Human Resources Assistant at the VAMC in
Orlando, Florida, before being reassigned, per his request,
as a Supply Technician. After arriving in Orlando, Mr.
Council lodged a number of complaints against the DVA
before the Equal Employment Opportunity Commission
(“EEOC”) regarding his demotion and other incidents of
alleged discrimination he had faced during his time at the
Houston VAMC.
    During the discovery phase of the proceedings before
the EEOC, Mr. Council sent the DVA’s attorney a pack-
age of documents. The documents came with a cover page
entitled, “Enclosures: Copies of NPPD [National Prosthet-
ics Patient Database] Data” and contained unredacted or
poorly redacted personally identifiable information about
Houston VAMC patients. Because the distribution of that
information potentially violated the Privacy Act, 5 U.S.C.
§ 552a, and VAMC policy, the DVA’s Office of Inspector
General (“OIG”) conducted an investigation. When ques-
 DARRALYN COUNCIL   v. DVA                              3
tioned, Mr. Council claimed that the DVA attorney had
sent him the documents, and that Mr. Council had re-
dacted them in order to comply with the Privacy Act
before returning them to the attorney.
    On August 15, 2008, the DVA removed Mr. Council
for improper retention of documents containing confiden-
tial personally identifiable information from his prior
employment at the Houston VAMC and for lack of candor
during the investigation. Mr. Council appealed to the
Board, which affirmed the decision. The administrative
judge hearing Mr. Council’s 2008 appeal found his expla-
nation not to be credible, in part because Mr. Council had
never reported receiving any documents containing per-
sonally identifiable information from the DVA attorney,
as he would have been required to do. Moreover, Mr.
Council had initially informed the attorney that the
documents were relevant to his complaint, and he did not
claim at that time that he was merely returning docu-
ments the attorney had sent him. It was not until a later
OIG interview that Mr. Council first alleged that the DVA
attorney had sent him the documents. When asked why
he had not provided that information earlier, he claimed
it was a “tactical decision” on his part. The administra-
tive judge found that the DVA attorney’s testimony,
unlike Mr. Council’s, was logical and consistent with the
evidence on the record. The administrative judge further
found that the attorney’s testimony was corroborated by
the OIG investigator and by Mr. Council’s supervisor. Mr.
Council accused both of them of lying.
    The administrative judge also rejected Mr. Council’s
claim that he was denied the opportunity to have his
union or legal representative present at his OIG inter-
view. The OIG investigator testified that Mr. Council did
not ask to have a representative present. The adminis-
trative judge noted that Mr. Council had also claimed that
he was denied representation for his oral reply to the
agency’s proposed notice of removal, yet the record of that
4                                 DARRALYN COUNCIL    v. DVA
proceeding showed that he had declined to have a repre-
sentative present.    Finally, the administrative judge
rejected Mr. Council’s claims that his removal was racial-
ly discriminatory or effected in retaliation for his com-
plaints to the EEOC.
     Mr. Council appealed the administrative judge’s deci-
sion to the full Board, which denied review on October 8,
2009. Mr. Council then petitioned for review by this
court. The court, however, dismissed the petition for
want of jurisdiction when Mr. Council declined to waive
his discrimination claims on appeal. Council v. Dep’t of
Veteran Affairs, 380 F. App’x 981 (Fed. Cir. 2010); see 5
U.S.C. § 7702(a)(1). When Mr. Council took no further
steps with regard to that proceeding, the Board’s decision
affirming his removal became final.
    On October 17, 2011, Mr. Council filed a second
appeal before the Board challenging his removal. This
time he added a claim that he was removed in retaliation
for whistleblower activity under the Whistleblower Pro-
tection Act of 1989. In particular, he claimed he was fired
for alleging that the DVA attorney had sent him docu-
ments containing personally identifiable information.
The administrative judge who was assigned to the appeal
dismissed the case as barred by res judicata because the
Board had already adjudicated the lawfulness of Mr.
Council’s removal. Mr. Council petitioned for review by
the full Board, which denied the petition. Mr. Council
now seeks review by this court.
                       DISCUSSION
    Mr. Council failed to challenge the application of res
judicata in his appeal before the Board, and he failed to
address that issue in his opening brief before this court.
Instead, he devotes the bulk of his argument to reassert-
ing his whistleblower retaliation claim and attacking the
original removal decision on the merits. Any claim re-
garding the Board’s application of res judicata is therefore
 DARRALYN COUNCIL   v. DVA                               5
waived. SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1319–20 (Fed. Cir. 2006); Bosley v. Merit Sys.
Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). In any
event, the Board’s decision is clearly correct. There is no
question that on the original appeal in October 2009 the
Board had jurisdiction to review Mr. Council’s removal,
that the Board’s decision at that time was on the merits
and final, and that in this appeal Mr. Council has assert-
ed the same claim against the same party as in the earlier
appeal. See Carson v. Dep’t of Energy, 398 F.3d 1369,
1375 (Fed. Cir. 2005). The Board’s earlier decision there-
fore precludes Mr. Council from appealing his removal
decision a second time, even if he now seeks to advance
new arguments or legal theories in support of his claim.
Foster v. Hallco Mfg. Co., Inc., 947 F.2d 469, 478 (Fed.
Cir. 1991) (for claim preclusion purposes, “‘claim’ does not
mean merely ‘argument’ or ‘assertion.’ ‘Claim’ is used in
the sense of the facts giving rise to the suit.”); Gillig v.
Nike, Inc., 602 F.3d 1354, 1363 (Fed. Cir. 2010) (“Claims
arising from the same nucleus of operative facts are
barred by res judicata.”).
    Mr. Council alleges that in the original appeal the
Board lacked jurisdiction over his removal because he was
essentially accused of stealing confidential documents, a
criminal charge. But the Board did not conduct a crimi-
nal proceeding against Mr. Council. Instead, it properly
exercised its jurisdiction to review his removal.
    Mr. Council addresses the Board’s res judicata ruling
in his reply brief. He contends that res judicata should
not be applied because he was deprived of due process in
the original proceedings. His due process argument is
based on his claim that the DVA refused to allow him
union or legal representation during his OIG interview.
Even if true, any error in the investigation would not
constitute a denial of due process in the Board proceeding
that would warrant depriving the Board’s earlier ruling of
res judicata effect. In any event, however, the adminis-
6                               DARRALYN COUNCIL   v. DVA
trative judge in Mr. Council’s first appeal held that he
was not denied his rights to representation, based on
testimony from the agent who conducted the interview
and other evidence relating to the investigation. That
conclusion was clearly supported by substantial evidence
and cannot serve as a basis for overturning the Board’s
decision in this appeal. We therefore affirm the Board’s
decision.
    No costs.
                     AFFIRMED
