                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ELBERT HICKS,                                   DOCKET NUMBER
                         Appellant,                  PH-3443-13-0185-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 30, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Elbert Hicks, Chesapeake, Virginia, pro se.

           Jasmin A. Dabney, Landover, Maryland, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal on the basis of res judicata. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute


     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     or regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        In a February 4, 2014 decision, the Board forwarded this appeal for
     docketing and adjudication as a refiled appeal, finding that the administrative
     judge had properly dismissed the appeal without prejudice in the interest of
     administrative efficiency. Hicks v. U.S. Postal Service, MSPB Docket No. PH-
     3443-13-0185-I-1, Final Order (Feb. 4, 2014). Following docketing as a refiled
     appeal and without holding a hearing, the administrative judge dismissed the
     appeal. Hicks v. U.S. Postal Service, MSPB Docket No. PH-3443-13-0185-I-2,
     Refiled Appeal File, Tab 7, Initial Decision (ID).       In his timely petition for
     review, the appellant argues that his resignation in 1984 was involuntary and he
     contends that the administrative judge is biased against him. MSPB Docket No.
     PH-3443-13-0185-I-2, Petition for Review (PFR) File, Tab 1. The agency did not
     respond.
     The appellant’s restoration claim is barred by res judicata.

¶3        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
                                                                                        3

     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). Under the doctrine of res judicata, 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. Id.
¶4         To the extent that the appellant is trying to challenge the agency’s failure to
     restore him, the administrative judge correctly found that the Board has
     previously adjudicated and decided the appellant’s restoration claim. ID at 4-5;
     see Hicks v. U.S. Postal Service, 251 F.3d 169 (Fed. Cir. 2000) (Table); see also
     Hicks v. U.S. Postal Service, MSPB Docket No. PH-3443-12-0485-I-1, Final
     Order (Aug. 21, 2013); Hicks v. U.S. Postal Service, 114 M.S.P.R. 232 (2010);
     Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶¶ 10-11 (1999); Hicks v. U.S.
     Postal Service, 35 M.S.P.R. 27 (1987). Under the doctrine of res judicata, the
     appellant may not relitigate the merits of his restoration appeal.
¶5         The appellant also argues that the administrative judge was biased against
     him. PFR File, Tab 1 at 1. In making a claim of bias or prejudice against an
     administrative judge, a party must overcome the presumption of honesty and
     integrity that accompanies administrative adjudicators. Oliver v. Department of
     Transportation, 1 M.S.P.R. 382, 386 (1980).           The appellant’s unsupported
     accusation, which concerns whether the administrative judge considered a
     particular piece of evidence, PFR File, Tab 1 at 1, is insufficient to overcome the
     presumption or honesty and integrity, especially in light of the fact that she
     correctly found the appeal barred by the doctrine of res judicata, ID at 4-5.
¶6         The administrative judge also correctly found that the appellant failed to
     provide the requisite nonfrivolous allegation that his resignation was involuntary.
     ID at 5-6. An appellant is entitled to a hearing on the issue of Board jurisdiction
     over an appeal of an allegedly involuntary resignation or retirement only if he
     makes   a   nonfrivolous   allegation   casting   doubt   on   the   presumption   of
     voluntariness. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643
                                                                                  4

(Fed. Cir. 1985).   The appellant’s conclusory, unsupported allegations do not
constitute nonfrivolous allegations of jurisdiction under applicable Board
precedent. See Initial Appeal File, Tab 7. Therefore, we discern no reason to
disturb the administrative judge’s explained findings. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); see also Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same). Accordingly, the appellant has provided no
basis upon which to disturb the initial decision.

                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. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

      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 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
                                                                                5

States   Code,   at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information 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.
     If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
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.
