                                   UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                    No. 17-2013


CHRISTOPHER CHIN-YOUNG,

          Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; U. S. ARMY; U.S. MERIT SYSTEMS
PROTECTION BOARD; KATHLEEN COLE; ATTORNEY GENERAL OF THE
UNITED STATES; DENNIS C. BARGHAAN, JR., Assistant United States Attorney;
ASHTON CARTER, DOD Secretary; PATRICK J. MURPHY, Secretary of the Army;
WILLIAM D. SPENCER, MSPB Clerk of the Board; DENISE PRICE; LEROY
LUNDGREN, Cyber-Security Directorate,

          Defendants – Appellees.


                                    No. 17-2017


CHRISTOPHER CHIN-YOUNG,

          Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; U.S. ARMY; U.S. MERIT SYSTEMS
PROTECTION BOARD; KATHLEEN COLE; ATTORNEY GENERAL OF THE
UNITED STATES; DENNIS C. BARGHAAN, JR., Assistant United States Attorney;
ASHTON CARTER, DOD Secretary; PATRICK J. MURPHY, Secretary of the Army;
WILLIAM D. SPENCER, MSPB Clerk of the Board; DENISE PRICE; LEROY
LUNDGREN, Cyber-Security Directorate,

          Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01454-CMH-MSN)


Argued: March 19, 2019                                            Decided: May 14, 2019


Before AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.


Affirmed in part, reversed in part, and remanded for further proceedings by unpublished
opinion. Judge Duncan wrote the opinion, in which Judge Agee and Judge Floyd
concurred.


ARGUED: Meghan Elizabeth Monaghan, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant. Kimere Jane Kimball, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: G. Zachary
Terwilliger, United States Attorney, Dennis C. Barghaan, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
DUNCAN, Senior Circuit Judge:

       Christopher Chin-Young appeals the district court’s dismissal of his tort,

discrimination, and various statutory claims on grounds of res judicata. For the reasons

that follow, we affirm in part, reverse in part, and remand for further proceedings.



                                              I.

       Chin-Young was terminated from his position as a civilian Supervisory Program

Analyst in the Army Contracting Command (the “ACC”) in Fort Belvoir, Virginia in

January 2011. He challenged his termination before the Merit Systems Protection Board

(the “MSPB”), an adjudicatory agency that reviews personnel matters involving certain

federal employees, and he settled his initial challenge in May 2011. He has subsequently

brought three petitions to enforce the settlement agreement, resulting in two decisions by

the MSPB, both of which he has appealed to federal district court. His second appeal is

before us now. Separate from these petitions, Chin-Young brought an additional action

in Virginia state court, which was later removed to federal court. This therefore marks

his third federal court action arising from his 2011 termination.

       We begin by describing the procedural history of these actions. Although Chin-

Young’s operative complaint raises numerous claims, the principle issue before us now is

the extent to which principles of res judicata bar this action.



                                              A.



                                              3
        Chin-Young initially appealed his termination to the MSPB, pursuant to the Civil

Service Reform Act (the “CSRA”), 5 U.S.C. § 1101 et seq., which regulates federal

employment practices. Chin-Young argued that his termination violated federal anti-

discrimination statutes, that he was terminated in retaliation for protected whistleblowing

activity, and that his termination lacked a legal basis under the CSRA. Pending the

appeal, however, and at the urging of the responsible MSPB Administrative Law Judge

(the “ALJ”), Chin-Young settled his claims in May 2011. Pursuant to the settlement

agreement, Chin-Young agreed to release all claims and to voluntarily resign from his

position after a period of temporary reinstatement in exchange for a neutral employment

reference and expungement of disciplinary records from his Army Official Personnel

File.

        Chin-Young first petitioned to enforce the settlement agreement in September

2011. As a result of this petition, the parties agreed to modify the agreement. The ACC

agreed to request that another agency waive certain debts Chin-Young owed as a result of

his termination and temporary reinstatement and to request that the Department of

Defense enter him into its Priority Placement Program (“PPP”) if he was otherwise

eligible.   Pursuant to these agreed modifications, the ALJ entered the settlement

agreement in the record for enforcement purposes and dismissed Chin-Young’s petition

in its compliance initial decision (its “CID”) of November 2011.

        Chin-Young brought a second petition to enforce the settlement agreement in

February 2012, asserting new breaches, including a failure to scrub his personnel file and

to secure his placement in the PPP.        Chin-Young also argued that he had been

                                            4
fraudulently induced to enter into the settlement agreement because the ACC had never

intended to comply with its obligations. The ALJ dismissed these claims in a June 2012

CID.

       In September 2012 Chin-Young petitioned the MSPB for review of both CIDs,

and the MSPB consolidated these petitions. The MSPB dismissed Chin-Young’s claims

of breach and challenges to the settlement agreement’s validity in November 2013. The

MSPB thereby considered and resolved on the merits the issue of the settlement

agreement’s validity.

       In its November 2013 decision the MSPB found that the ACC had not breached

the agreement by maintaining internal records of adverse disciplinary actions, that it had

not agreed to bind other agencies with respect to Chin-Young’s indebtedness, and that it

had not otherwise undertaken to secure Chin-Young’s entry in the PPP. Chin-Young v.

Dep’t of Army, No. DC–0752–11–0394–C–1, 2013 WL 9658987, at *4–6 (M.S.P.B. Nov.

14, 2013).   It therefore rejected Chin-Young’s claims that “the agency entered the

modified settlement agreement in bad faith” by representing that it could bind other

agencies, or “knowingly concealed” material information from Chin-Young during

settlement negotiations, finding instead that the settlement agreement was valid and

binding. Id. at *4–5. By affirming the challenged CIDs, the MSPB affirmed the entry of

the modified settlement agreement into the record for enforcement purposes, affirmed the

consent dismissal of Chin-Young’s first petition to enforce, and, by doing so, finally

resolved Chin-Young’s challenge to his termination.



                                            5
      Chin-Young appealed the MSPB’s November 2013 decision to the district court

for the District of Maryland. Proceeding pro se, Chin-Young reasserted in his complaint

that the settlement agreement was void, now arguing that the ALJ had coerced him into

signing it. He further asserted that his initial termination violated the CSRA, that he was

disciplined and terminated for discriminatory reasons in violation of Title VII and the

Age Discrimination in Employment Act (the “ADEA”), and that he was subjected to

various other common law and statutory violations. 1

      The district court dismissed Chin-Young’s claims in April 2015, pursuant to

precedent holding that petitions to the MSPB to enforce settlement agreements were only

appealable to the Federal Circuit. Chin-Young v. McHugh, No. RWT 13-cv-3772, 2015

WL 1522880, at *3 (D. Md. Apr. 2, 2015).            The district court noted that while

discrimination claims based on a plaintiff’s termination from federal employment could

be appealed to the district court in some circumstances, it lacked “jurisdiction to review

dismissal of Chin-Young’s claims, given that Chin-Young’s discrimination claims were


      1
        Chin-Young’s operative complaint stated eight claims, with some claims alleging
multiple legal violations. These claims consisted of 1) a challenge to the settlement
agreement as fraudulent and procured by duress and undue influence; 2) miscellaneous
challenges to the MSPB’s interpretation of the settlement agreement; 3) Title VII and
ADEA challenges to disciplinary actions taken against him and to his termination; 4)
claims arising from his supervisors’ alleged unauthorized review of his medical records
and denial of his request for medical leave under the Health Insurance Portability and
Accountability Act (the “HIPAA”), the Family and Medical Leave Act (the “FMLA”)
and 42 U.S.C. § 1983; 5) an Administrative Procedure Act and Federal Tort Claims Act
(“FTCA”) challenge to the recategorization of his position; 6) § 1983 claims and claims
under the Privacy Act arising from an alleged conspiracy against him by his coworkers;
7) unspecified § 1983 claims against the agency’s attorney in the MSPB proceedings; and
8) claims alleging obstruction of justice and due process violations.

                                            6
never addressed by the MSPB, that he has not brought a ‘mixed case’ subject to this

Court’s review under 5 U.S.C. § 7703(b)(2), and that exclusive jurisdiction over his

claims lies in the Federal Circuit.” Chin-Young v. McHugh, 2015 WL 1522880, at *3

(citation omitted). Although it dismissed his claims on jurisdictional grounds, the district

court further observed that “Chin-Young provides no information that might lead to a

reasonable conclusion that some plausible federal cause of action has accrued on his

behalf, or that his claims have been exhausted at the administrative level.” Id. We

affirmed on the reasoning of the district court. Chin-Young v. Rowell, 623 F. App’x 121,

121, 122 (4th Cir. 2015) (unpublished).



                                            B.

       The following year, Chin-Young filed an action pro se in Virginia state court

against the Virginia Employment Commission and one of his former ACC supervisors,

Autumn Aquinaldo. Chin-Young alleged various state tort claims against Aquinaldo and

sought unemployment benefits. The United States substituted itself for Aquinaldo and

removed the action to federal court in the Eastern District of Virginia. Chin-Young

amended his complaint and asserted violations of his Fifth and Fourteenth Amendment

due process rights, the Americans with Disabilities Act (the “ADA”), the Family and

Medical Leave Act (the “FMLA”), Title VII, the ADEA, the Health Insurance Portability

and Accountability Act (the “HIPAA”), and the Privacy Act. He further asserted that he

was assaulted by the Army and raised various negligence claims under the Federal Tort

Claims Act (the “FTCA”). Aside from his assault claim, a claim based on his 2012

                                             7
demotion from a different position, and a new HIPAA and FMLA claim based on events

following his return from a 2014 deployment in Afghanistan, these claims almost entirely

reiterated those raised before the Maryland district court.

       The district court dismissed Chin-Young’s complaint in October 2016, finding that

the tort claims based on adverse employment actions were precluded by the CSRA; that

any remaining tort claims were barred by the intentional tort exception to the FTCA; that

pursuant to the removal of the action from state court the federal court’s derivative

jurisdiction did not give it power to hear Title VII, ADA, or ADEA claims; and that

Chin-Young’s FMLA, HIPAA, Privacy Act, and constitutional claims did not plausibly

establish an entitlement to relief. Chin-Young v. United States, No. 16-cv-00544-GBL-

JFA (E.D. Va. Oct. 4, 2016). The dismissal was without prejudice.



                                             C.

       While proceedings in the Eastern District of Virginia were pending, Chin-Young

filed his third petition to enforce his settlement agreement before an MSPB ALJ in May

2016. In this petition, Chin-Young again asserted breaches of the settlement agreement,

again sought to revive discrimination claims based on his 2011 termination and preceding

disciplinary incidents, and again challenged the validity of the settlement agreement.

Chin-Young again argued that he was fraudulently induced into the settlement agreement

and added challenges to the settlement based on duress and undue influence, theories that

he had first raised before the Maryland district court.



                                              8
       The ALJ and then the MSPB rejected Chin-Young’s arguments. The MSPB held

that Chin-Young’s challenge to the validity of the settlement agreement was barred by res

judicata. “[T]he Board has already considered and rejected the appellant’s assertion that

the settlement agreement is invalid,” it held. J.A. 367. Highlighting that it had already

addressed claims of fraudulent inducement, it went on to state that “[t]o the extent that

any . . . allegations [including coercion or undue influence] . . . previously have not been

before the Board, they are all based on facts that were known to the appellant at the time

of his earlier claim of invalidity.” J.A. 368.

       Chin-Young sought review of this second MSPB decision in the district court for

the Middle District of Georgia, which sua sponte transferred the action to the Eastern

District of Virginia. 2 There, the district court dismissed Chin-Young’s complaint on the

basis of res judicata, pointing to the two prior federal court actions involving substantially

similar claims. Chin-Young v. United States, No. 1:16-cv-1454, 2017 WL 2960532 at

*2–3 (E.D. Va. July 11, 2017). This appeal followed.



                                                     II.




       2
         Chin-Young was terminated from a separate position with the Army Office of
the Chief Information Officer (the “Army CIO”) in 2015. Chin-Young has challenged
his termination before the MSPB, and those proceedings were pending when Chin-Young
filed his complaint in this action. Chin-Young’s operative complaint here “reference[s]
for context” this other termination and proceeding, but does not directly assert claims
arising therefrom. J.A. 177. If Chin-Young preserves his discrimination claims based on
that termination, review of the MSPB decision will lie in district court, as discussed infra.

                                                 9
       We review de novo a district court’s dismissal for res judicata. Brooks v. Arthur,

626 F.3d 194, 200 (4th Cir. 2010). However, we first address our own jurisdiction,

pursuant to our “independent obligation” to do so, before turning to whether the present

action is barred. Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir. 2017).



                                                 III.

       Although the parties agree that we have jurisdiction to hear this appeal, we

previously dismissed Chin-Young’s action on the basis that the CSRA generally vests

jurisdiction to review MSPB decisions exclusively in the Federal Circuit, see Rowell, 623

F. App’x 121, and the government previously argued that we lacked jurisdiction in Chin-

Young’s first action before us. Defendant’s Memorandum in Support of the Motion to

Dismiss at 8, Chin-Young v. McHugh, 2015 WL 1522880 (D. Md. Apr. 2, 2015) (No.

RWT 13-cv-3772). We therefore begin by independently confirming that we do.

       Chin-Young challenges the MSPB’s denial of his petition to enforce a settlement

agreement. In his petition, Chin-Young challenges the validity of the agreement itself,

seeking to revive his underlying challenges to his 2011 termination and preceding

disciplinary actions as discriminatory, retaliatory, and unlawful. We first survey the

applicable statutory framework governing judicial review of these claims before

describing how judicial construction of that framework has changed since Chin-Young’s

first federal court action.



                                            A.

                                            10
       Because Chin-Young was a government employee, the terms of his employment

and eligibility for termination are governed by the CSRA. This statute was enacted to

provide “an integrated scheme of administrative and judicial review” of “employment

decisions involving government employees.” Mann v. Haigh, 120 F.3d 34, 37 (4th Cir.

1997) (quoting United States v. Fausto, 484 U.S. 439, 445 (1988)). The CSRA was

thereby meant to replace the previous “haphazard arrangements for administrative and

judicial review . . . that was the civil service system.” Fausto, 484 U.S. at 444.

       Chapter 75, Subchapter II of the CSRA provides certain procedural protections for

federal employees subjected to certain serious adverse employment actions taken to

promote the efficiency of the service.         5 U.S.C. §§ 7511–15.        Covered adverse

employment actions include suspensions for more than fourteen days, reductions in grade

or pay, furloughs of thirty days or less, or, as relevant here, termination. Id. § 7512.

Individuals subject to such adverse employment actions may challenge the action before

the MSPB, and they may seek review of the MSPB’s decision in the Federal Circuit. Id.

§§ 7703(b)(1)(a), 7513(d).

       However, the CSRA also anticipates that employees may challenge such actions

under federal antidiscrimination statutes over which the Federal Circuit lacks jurisdiction.

Thus, Section 205 of the CSRA provides that the MSPB may hear claims of

discrimination under Title VII, the ADEA, or the Fair Labor Standards Act, where the

alleged discrimination is tied to claims arising from an adverse employment action over

which the board otherwise has jurisdiction. Id. § 7502. These cases are defined by

regulations as “mixed cases”--cases in which an employee “has been affected by an

                                             11
action which the employee or applicant may appeal to the [MSPB]” and “alleges that the

basis for the action was discrimination prohibited by” Title VII, the ADEA, or the Fair

Labor Standards Act. Id. § 7702(a)(1); 5 C.F.R. § 1614.302. To ensure judicial review

of MSPB decisions in these mixed cases, the CSRA provides that petitioners may instead

seek judicial review in the appropriate district court under the enforcement provisions of

the relevant antidiscrimination statutes. 5 U.S.C. § 7703(b)(2). Thus, the question of

whether a petitioner presents a mixed case controls which federal court has authority to

review an MSPB decision in their case.



                                            B.

       The question of how to identify a “mixed case” has presented difficulties for the

federal courts. Until the issuance of two recent Supreme Court cases, the Federal Circuit

narrowly construed this “mixed case” exception to its jurisdiction. It did so in part based

on its view of the importance of “a unified body of case law concerning issues like . . .

the jurisdiction of the MSPB itself.” Ballentine v. Merit Sys. Prot. Bd., 738 F.2d 1244,

1247 (Fed. Cir. 1984). We begin by surveying two aspects of the Federal Circuit’s prior

approach that we relied on in our analysis of Chin-Young’s claims when they first came

before us, before explaining why we have jurisdiction under the current approach

articulated by the Supreme Court.

       First, the Federal Circuit formerly held that it had jurisdiction over appeals of

“threshold” determinations by the MSPB in cases that would otherwise be treated as

mixed and reviewed in district court by virtue of a petitioner’s allegations of

                                            12
discrimination. Id. Under this approach, an MSPB decision was only subject to review

in the district court when “the discrimination issue . . . ha[d] been decided on the merits

by the MSPB,” but not when the MSPB had dismissed the petition on, e.g., jurisdictional

or procedural grounds. Id. at 1246–47. “[U]nless and until the right of a petitioner . . . to

a trial de novo on the merits of a case is invoked,” the Federal Circuit retained appellate

jurisdiction. Id. at 1247.

       Second, the Federal Circuit restricted the definition of a “mixed case” not only by

reference to the content of the MSPB’s decision but based on the statutory source of the

MSPB’s jurisdiction over the action. In King v. Reid, the Federal Circuit highlighted that

Section 202(a) of the CSRA identifies distinct bases for MSPB jurisdiction, with

subsection 1 setting forth the MSPB’s power to review claims under the CSRA, including

adverse employment actions involving discrimination, and subsection 2 providing it

power to ensure compliance with its own orders, including orders dismissing petitions

pursuant to settlement agreements entered into the record. 59 F.3d 1215, 1218–19 (Fed.

Cir. 1995); 5 U.S.C. § 1204(a). Emphasizing that the MSPB could hear discrimination

claims only insofar as they derive from actionable adverse employment actions under

subsection 1, the court in King found that the MSPB did not have jurisdiction over claims

that an agency discriminated in breaching a settlement agreement. 59 F.3d at 1219.

Similarly, in Oja v. Department of Army, the court held that a petition to enforce an

agreement settling a mixed case was not itself a mixed case subject to review in district

court. 405 F.3d 1349, 1355 (Fed. Cir. 2005).



                                             13
        The Supreme Court has rejected the first of these limitations and circumscribed the

second in a pair of recent cases clarifying the test for whether an MSPB petition presents

a mixed case. Under controlling precedent, we now identify a mixed case by looking to a

petitioner’s allegations, not the basis for the MSPB’s jurisdiction or disposition. Where a

petitioner alleges that she suffered an adverse employment action subject to MSPB

review, and that the adverse employment action involved discrimination under an

antidiscrimination statute enumerated in 5 U.S.C. § 7702(a)(1)(B), she has raised a mixed

case.

        In Kloeckner v. Solis, the Court held that “all that matters” for purposes of

identifying a mixed case is whether the petitioner “was affected by an action . . .

appealable to the MSPB and [whether] she alleged discrimination prohibited by an

enumerated federal law”--not whether the MSPB dismissed the petition on a threshold

procedural issue. 568 U.S. 41, 50 (2012). Thus, in that case, the district court could

properly review an MSPB decision dismissing as untimely an employee’s petition

alleging a mixed case. Id.

        In Perry v. Merit Systems Protection Board, 137 S. Ct. 1975, 1984 (2017), the

Court clarified that Kloeckner set forth the generally applicable test for identifying a

mixed case, defining it as a case in which an employee “complains of a personnel action

serious enough to appeal to the MSPB . . . and alleges that the action was based on

discrimination.” Perry, 137 S. Ct. at 1984. The Court emphasized that “[t]he key to

district court review . . . [is] the employee’s clai[m].” Id. (alteration in original) (internal

quotation marks omitted). Thus, it made no difference in Perry that the MSPB had

                                              14
dismissed an employee’s petition alleging a mixed case on jurisdictional rather than

procedural grounds.

       Perry further clarifies that a mixed case depends on the petitioner’s allegations

even where a settlement agreement stands between a reviewing court and the relevant

discrimination claims. The petitioner in Perry settled discrimination claims arising out of

his termination.   He agreed in the settlement to a thirty-day suspension and early

retirement, and he waived discrimination claims filed separately with the EEOC. Id. at

1982. He then brought an action before the MSPB challenging the validity of the

settlement and seeking to reinstate challenges to his suspension and retirement as well as

his related discrimination claims.       The MSPB found that the settlement was valid,

precluding Perry from basing a claim on his termination and therefore presenting no

adverse employment action over which it had jurisdiction. Ignoring the settlement, the

Supreme Court focused on Perry’s allegations to hold that, notwithstanding the

jurisdictional basis for the MSPB’s dismissal, Perry’s appeal properly presented a “mixed

case” subject to district court review because he sought to present discrimination claims

based on his termination. Id. at 1988.

       Perry therefore allows us to look behind Chin-Young’s settlement agreement to

identify a mixed case. While Perry’s effects on King and Oja are unclear, Perry has

clarified that neither case is relevant here. Chin-Young and Perry both sought MSPB

review of an adverse employment action on the basis that it was discriminatory. That is,

unlike the petitioners in King and Oja, Chin-Young and Perry both sought to revive their

underlying challenges to allegedly discriminatory terminations before the MSPB.

                                              15
       Admittedly, there are differences between Perry’s claims and Chin-Young’s

claims. Most importantly, unlike Chin-Young or the petitioners in King and Oja, Perry

did not enter his settlement into an MSPB administrative record, and so the MSPB did

not have enforcement authority over the settlement under CSRA § 202(2). However,

under the Supreme Court’s guidance, we look to the petitioner’s allegations to determine

whether they present a mixed case, rather than the MSPB’s disposition of those

allegations. Under this test, Chin-Young’s petition establishes a mixed case. The district

court therefore had jurisdiction to review the MSPB’s dismissal, and we have jurisdiction

over this appeal.



                                           IV.

       The pivotal issue here is the extent to which this action is precluded by the

numerous prior decisions disposing of substantially the same claims. 3        Chin-Young

argues that because his challenge to the validity of the settlement agreement has not been

resolved on the merits by a federal court, it is not barred by res judicata. The government

argues that res judicata applies because the first two district courts dismissed Chin-



       3
         Chin-Young argues that res judicata cannot be considered on a motion to dismiss
because it is an affirmative defense. To support this theory, he points to language in
Perry stating that affirmative defenses are “not something the plaintiff must anticipate
and negate in her pleading.” 137 S. Ct. at 1986 n.9. This dicta from Perry is neither
relevant nor remarkable; we have long recognized that a complaint need not negate
affirmative defenses, that generally affirmative defenses will not be considered on a
motion to dismiss, and that res judicata is an exception to this general rule. See Andrews
v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000)

                                            16
Young’s complaints on sovereign immunity grounds. It also argues that even if Chin-

Young’s claim is not precluded, the particular issues he raises in his complaint are.

       We first determine that Chin-Young’s prior federal court actions do not bar his

current attempt to litigate the same claims. Noting that we may affirm on any basis

supported by the record, however, we nevertheless determine that Chin-Young’s claims

are largely, but not entirely, barred by his settlement agreement and the MSPB’s

November 2013 decision.



                                            A.

       The district court held that the prior decisions of this court and of the Eastern

District of Virginia bar Chin-Young’s claims in this action. Res judicata bars a claim

where (1) a final judgment on the merits in a prior suit (2) involving the same parties or

their privies (3) resolved claims arising from the same cause of action as the claim at

issue. Ohio Valley Envt’l Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009).

This is a “practical doctrine” that looks to whether a party “has previously had a fair shot

with respect to the claims raised in the present action.”        SAS Inst., Inc. v. World

Programming Ltd., 874 F.3d 370, 378 (4th Cir. 2017). We apply a “transactional”

approach to identifying the scope of a claim, looking to whether a subsequent lawsuit

“arises out of the same transaction or series of transactions as the claim resolved by the

prior judgment.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013)




                                            17
(citation omitted). Chin-Young’s formal brief contests only the first element with respect

to the prior federal court decisions. 4

       Specifically, Chin-Young argues that his claims are not precluded by his prior

actions in federal court because those actions turned on the absence of jurisdiction. The

absence of subject-matter jurisdiction generally prevents a judgment from barring a

subsequent claim. In Goldsmith v. Mayor and City Council of Baltimore, we recognized

that a prior dismissal of a claim for lack of jurisdiction did not bar a subsequent action

alleging different claims based on the same underlying transaction or occurrence. 987

F.2d 1064, 1069 (4th Cir. 1993); see Fed. R. Civ. P. 41(b) (setting out that jurisdictional

dismissals are not “on the merits”). Under this framework, neither our prior decision nor

the prior decision of the Eastern District of Virginia precludes Chin-Young’s claims. We

address each decision in turn.

       First, in our prior decision on Chin-Young’s claims, we relied on King and Oja to

dismiss his complaint for lack of subject-matter jurisdiction, because we found that only

the Federal Circuit had authority to review an MSPB decision on a petition to enforce a

settlement agreement. Under Goldsmith, our jurisdictional dismissal lacks res judicata

effect. 987 F.2d at 1069.

       Second, in the decision of the District Court for the Eastern District of Virginia, it

did not solely rely on a lack of jurisdiction in dismissing Chin-Young’s claims.

       4
         Although Chin-Young disputed the identity of the parties in his pro se informal
brief, we treat a formal brief by appointed counsel as controlling unless ignoring an issue
raised by a pro se appellant’s informal brief would result in “grave injustice.” Slezak v.
Plyler, 21 F.3d 590, 593 n.2 (4th Cir. 1994). We see no such grave injustice here.

                                             18
Consequently, that decision presents a more complex inquiry. The district court there

dismissed some of Chin-Young’s claims for lack of jurisdiction and others for failing to

state a claim for relief. It expressly did so without prejudice. However, neither basis for

dismissal bars these claims. As we explained in Goldsmith, jurisdictional dismissals do

not operate as a bar. And as we stated in Choice Hotels International, Inc. v. Goodwin &

Boone, “[d]ismissals without prejudice do not bar subsequent suits by res judicata.” 11

F.3d 469, 473 (4th Cir. 1993).

       The government argues that these decisions have res judicata effect because they

are based on sovereign immunity, and jurisdictional decisions based on sovereign

immunity do have res judicata effect.       But as the government itself recognizes, a

dismissal on sovereign immunity grounds is “a decision that no court of competent

jurisdiction exists.” Resp. Br. at 27. Neither we, nor the District of Maryland, nor the

Eastern District of Virginia, ever purported to make such a decision. Rather, we held that

the forum for relief for Chin-Young’s challenge to the validity of his settlement

agreement was the Federal Circuit. As we now recognize, the district court, not the

Federal Circuit, is the proper forum for claims seeking to revive allegations of

discrimination such as these.

       The government seeks to shore up its sovereign immunity argument by pointing to

language in the Eastern District of Virginia’s October 2016 decision in which the court

highlighted Chin-Young’s failure to exhaust his administrative remedies as required by

Title VII. Since Chin-Young can no longer exhaust these remedies due to timeliness



                                            19
bars, the government argues, the district court effectively held that no court could hear his

Title VII claims.

       Even if we were to accept the government’s characterization of a dismissal for

failure to exhaust, its argument is unavailing. The government fails to consider the

possible consequences of Chin-Young’s challenge to the settlement agreement in which

he released his Title VII claims on the vitality of those claims. We need not resolve any

such hypothetical consequences to note that invalidating Chin-Young’s settlement

agreement would give rise to complex questions regarding tolling and exhaustion

requirements. The government’s argument neglects to consider these questions. We are

therefore not persuaded by the government’s argument.

       As such, Chin-Young’s prior federal court actions do not bar this suit.



                                             B.

       Although Chin-Young’s claims have not been adjudicated on the merits in federal

court, “a valid and final adjudicative determination by an administrative tribunal has the

same effects under the rules of res judicata . . . as a judgment of a court.” Restatement

(Second) of Judgments § 83(1); see also Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir.

1997) (observing that “[w]hen an administrative agency is acting in a judicial

capacity . . . the courts have not hesitated to apply res judicata”).      Indeed, in B&B

Hardware, Inc. v. Hargis Indus., Inc., the Supreme Court relied on a decision of the

Trademark Trial and Appeal Board, an administrative tribunal, to bar litigation of a

repeated issue in a trademark infringement case in federal court. 135 S. Ct. 1293, 1303,

                                             20
1310 (2015). Although B&B concerned issue preclusion rather than claim preclusion, we

are guided by the Court’s determination that “absent a contrary indication, Congress

presumptively intends that an agency’s determination . . . has preclusive effect,” as well

as its reliance in part on the Restatement (Second) of Judgments for this proposition. Id.

at 1303, 1305.

       As a consequence, federal courts may determine that a second claim before an

administrative tribunal is precluded by a prior action before that tribunal. For instance, in

Arangure v. Whitaker, the Sixth Circuit found that the Department of Homeland Security

could be barred by claim preclusion from commencing a second removal proceeding

against an immigrant on the basis of the same purported aggravated felony underlying the

Department’s prior, unsuccessful effort to remove the person. 911 F.3d 333, 344 (6th

Cir. 2018).

       Here, the MSPB properly found Chin-Young’s instant action precluded by that

tribunal’s November 2013 decision. We see no reason to question the finality of the

MSPB’s November 2013 decision, which was clearly “on the merits,” affirming the

validity of the settlement agreement and the preclusive effect of the agreement itself. See

Aracoma Coal Co., 556 F.3d at 210 (setting out the elements of issue preclusion). Nor do

we see any Congressional indication that MSPB adjudications should lack preclusive

effect in subsequent MSPB proceedings or in federal court review of those proceedings.

See B&B Hardware, 135 S. Ct. at 1303. Although MSPB adjudications will not have

preclusive effect on the statutorily anticipated judicial review of those decisions in the

Federal Circuit or in district court, adjudications may have preclusive effect on

                                             21
subsequent, separate actions based on the same claims. Cf. Astoria Fed. Savs. & Loan

Assoc. v. Solimino, 501 U.S. 104, 109–10 (1991) (holding that where a plaintiff must

exhaust state administrative proceedings to bring federal claims, the administrative

adjudication lacks res judicata effect, as an exception to the default rule of administrative

preclusion).

       Most of Chin-Young’s claims were fully resolved by the MSPB through its

November 2013 decision. As the MSPB recognized in its decision at the outset of this

action, it had “already considered and rejected the appellant’s assertion that the

settlement agreement is invalid.” J.A. 367. And the settlement agreement itself was

entered into the administrative record to provide for agency enforcement jurisdiction,

thereby giving the settlement agreement preclusive effect. As a result, the MSPB’s

November 2013 decision bars claims arising out of Chin-Young’s 2011 termination,

including precipitating disciplinary incidents, and bars challenges to the effectiveness of

his settlement of those claims.

       It is true that Chin-Young’s appeal to the district court was dismissed for lack of

jurisdiction, and that he did not seek review before the Federal Circuit. However, for res

judicata purposes it does not matter that Chin-Young did not obtain judicial review of the

MSPB’s decision.       For administrative preclusion “[i]t is not necessary that the

administrative adjudication have been reviewed and affirmed by a court.” Restatement

(Second) of Judgments § 83 cmt. a. For instance, we regularly treat orders by Article I

bankruptcy courts as having res judicata effect. See, e.g., In re Varat Enters., 81 F.3d

1310, 1315 (4th Cir. 1996) (“A bankruptcy court’s order of confirmation is treated as a

                                             22
final judgment with res judicata effect.”).       Our prior determination that we lacked

jurisdiction did not have any bearing on the finality of the MSPB’s November 2013

decision.   See 18A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 4436 (2d ed. 1987) (“Wright & Miller”) (“[A]n admitted lack of jurisdiction

should prevent any effort to foreclose disposition by a court that does have jurisdiction.”).

       Furthermore, preclusion is not “defeated by electing to forgo an available

opportunity to appeal.” Id. § 4433. Our decision did not preclude Chin-Young from

appealing to the Federal Circuit. See id. (“[A] dismissal for lack of subject matter

jurisdiction . . . does not preclude a second action on the same claim in a court that does

have subject-matter jurisdiction.”). Administrative preclusion means, quite simply, that

the MSPB’s November 2013 decision on its own achieves preclusive effect.

       The settlement agreement itself is relevant to the preclusive effect of the MSPB’s

November 2013 decision. We recognize that final consent orders incorporating parties’

settlement agreements are judgments on the merits for purposes of preclusion. In re MI

Windows and Doors, Inc., Prods. Liab. Litig., 860 F.3d 218, 224 (4th Cir. 2017). The

MSPB ALJ entered Chin-Young’s settlement agreement into the record for enforcement

purposes in its November 2011 CID, and this was affirmed on review by the MSPB’s

November 2013 decision. 5 The settlement agreement itself controls the preclusive effect


       5
         We note that the Supreme Court in Perry was not presented with the question of
whether any res judicata effect flowed from that petitioner’s settlement agreement (over
which the MSPB did not have enforcement jurisdiction, as discussed supra). The Court
resolved only whether a settlement agreement stood in the way of a district court’s
jurisdiction of a claim under the CSRA alleging discrimination. 137 S. Ct. at 1986–87.
(Continued)
                                             23
of the consent judgment in which it results. See United States ex rel. May v. Purdue

Pharma L.P., 737 F.3d 908, 913 (4th Cir. 2013). In his settlement, Chin-Young released

“any . . . claims raised or that could have been raised as of the date” of the agreement

regarding his 2011 termination. J.A. 334. Consequently, such claims are also barred. 6

       Applying preclusive effect to the MSPB’s November 2013 decision disposes of

Chin-Young’s claims with respect to his 2011 termination and prior disciplinary incidents

as well as challenges to the validity of his settlement agreement.



                                             V.

       The “claims” to which claim preclusion applies by virtue of the MSPB’s

November 2013 decision are those arising out of Chin-Young’s 2011 termination and

those arising out of his settlement of that action. However, many of Chin-Young’s

allegations before the district court here do not arise out of either claim. For instance, he

brings FMLA and HIPAA claims based on actions taken by Army CIO officials




Having determined that Chin-Young presents a claim over which we have jurisdiction,
we are free to consider this issue.
       6
         Chin-Young’s settlement agreement purports to release claims that the MSPB
lacks jurisdiction to adjudicate, creating a question of whether a consent order may have
broader preclusive effect than a substantive order by the responsible adjudicatory entity.
See Restatement (Second) of Judgments § 83 cmt. g (“[L]imitations on authority of [an
administrative] tribunal should carry corresponding limitations on the scope of ‘claim’
for purposes of the rule of claim preclusion.”). We need not resolve this question; our
determination that the settlement agreement is valid conclusively establishes that Chin-
Young released any claims covered by the settlement agreement that the agreement does
not otherwise preclude.

                                             24
following his return from a 2014 deployment in Afghanistan, as well as claims relating to

a 2012 demotion that postdates the period covered by the settlement agreement.

       Nevertheless, Chin-Young raised certain of these allegations in his first action in

the Eastern District of Virginia. Thus, although these claims are not barred by the

MSPB’s November 2013 decision, issue preclusion may apply. Issue preclusion “bar[s]

subsequent litigation of those legal and factual issues [in a second litigation] . . . that were

actually and necessarily determined by a court of competent jurisdiction in the first

litigation.” Orca Yachts, LLC v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002)

(internal quotation marks omitted). As we stated in Goldsmith, “a jurisdictional dismissal

that does not constitute a judgment on the merits so as to completely bar further

transactionally-related claims still operates to bar relitigation of issues actually decided

by that former judgment.” 987 F.2d at 1069.            Rather than venture into a detailed

assessment of the effects of the Eastern District of Virginia’s October 2016 decision, we

remand for the district court to determine in the first instance which, if any, claims in

Chin-Young’s complaint have not already been litigated, and whether the dismissal

without prejudice of any repeat claims precludes their reassertion in this action.



                                              VI.

       For the foregoing reasons, the decision of the district court is

                                         AFFIRMED IN PART, REVERSED IN PART, AND
                                           REMANDED FOR FURTHER PROCEEDINGS.




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