                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CHARLES DERECK ADAMS,                           DOCKET NUMBER
                  Appellant,                         DC-0752-14-1033-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 30, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Charles Dereck Adams, Herndon, Virginia, pro se.

           James J. Delduco, Esquire, Redstone Arsenal, Alabama, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal as barred by 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 or regulation or the erroneous application of the law to the facts of the

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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).

                                     BACKGROUND
¶2        The appellant filed an appeal of his indefinite suspension, effective June 15,
     2009, and his removal, effective June 29, 2010. Initial Appeal File (IAF), Tab 1
     at 4-10, 15. With his appeal, he submitted a copy of an August 5, 2014 final
     agency decision (FAD) implementing an Equal Employment Opportunity
     Commission (EEOC) decision finding no discrimination with respect to his
     formal complaint in which he alleged that his indefinite suspension and removal,
     among other actions, constituted discrimination on the basis of his race and
     reprisal for his prior equal employment opportunity activity. IAF, Tab 1 at 4-10.
     The agency’s FAD treated the appellant’s complaint as a mixed-case complaint
     and notified him of his right to file a Board appeal within 30 calendar days of his
     receipt of the FAD. IAF, Tab 1 at 8.
¶3        The agency filed a motion to dismiss the appeal on the basis of res judicata,
     asserting that the appellant had previously appealed both his indefinite
     suspension and his removal to the Board and the U.S. Court of Appeals for the
     Federal Circuit, and final decisions had been issued in both appeals in favor of
                                                                                          3

     the agency. 2   IAF, Tab 3 at 4-5.      With respect to the appellant’s indefinite
     suspension, the agency submitted copies of decisions showing that the appellant
     had previously appealed the action to the Board, and the Board affirmed his
     indefinite suspension. IAF, Tab 3 at 7-17; MSPB Docket No. DC-0752-09-0620-
     I-1, Initial Decision (Aug. 12, 2009), Final Order (Sept. 23, 2009). In addition,
     the agency included a copy of the Federal Circuit’s decision also affirming the
     indefinite suspension action. IAF, Tab 3 at 18-20; see Adams v. Department of
     Defense, 371 F. App’x 93 (Fed. Cir. 2010).
¶4        Similarly, with respect to the appellant’s removal, the agency submitted
     copies of decisions showing that the appellant had previously appealed the action
     to the Board and the Board affirmed his removal. IAF, Tab 3 at 21-29; MSPB
     Docket No. DC-0752-10-0741-I-1, Initial Decision (Sept. 28, 2010), Final Order
     (Mar. 4, 2011).      The agency also included a copy of the Federal Circuit’s
     decision in Adams v. Department of Defense, 688 F.3d 1330 (Fed. Cir. 2012), a
     consolidated appeal that affirmed the Board’s final order with respect to the
     appellant’s removal and remanded his appeal concerning the denial of his request
     for early retirement under Voluntary Early Retirement Authority (VERA). IAF,
     Tab 3 at 30-39.
¶5        Consequently, the administrative judge issued an order to show cause
     setting forth the appellant’s burden to show that his appeal was not barred by res
     judicata and ordering him to respond. IAF, Tab 8. In response, the appellant
     argued that res judicata did not apply because his appeal related to a June 25,
     2014 EEOC decision and not his prior appeals to the Board and that he filed the
     appeal pursuant to the notice of appeal rights in the FAD. IAF, Tab 9 at 4.
¶6        Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appellant’s appeal as barred by res
     judicata.    IAF, Tab 15, Initial Decision (ID).          The administrative judge
     2
      The agency also asserted that in its FAD it had mistakenly provided the appellant with
     mixed-case appeal rights. IAF, Tab 3 at 4.
                                                                                            4

     determined that both the indefinite suspension and removal appeals had
     previously been decided because prior judgments on the merits had been
     rendered by a forum with competent jurisdiction and the same cause of action
     and the same parties or their privies were involved in both cases. ID at 3. The
     administrative judge also noted that he would not address the appellant’s
     remanded appeal of the agency’s denial of his request for early retirement
     because it was pending before another administrative judge. 3 ID at 4.
¶7         The appellant has filed a petition for review in which he does not address
     the issue of res judicata, but instead asserts that the initial decision is unfair,
     unjust, and not in accordance with law and that the administrative judge erred in
     not affording him a hearing and in failing to address various issues concerning
     the merits of his appeal. Petition for Review (PFR) File, Tab 2. The appellant
     further asserts that new and material evidence, including testimony from key
     witnesses and an unclassified H drive containing information relating to
     discrimination and retaliation, is available. 4 PFR File, Tab 2 at 10, 14. Finally,
     the appellant reargues the merits of his indefinite suspension and removal
     appeals, as well as the other actions addressed in the FAD, and submits
     numerous attachments to his petition addressing the merits of such actions. 5 PFR

     3
       The appellant’s VERA appeal remains pending before another administrative judge at
     the regional level. MSPB Docket No. DC-3443-10-0711-B-1. Thus, we see no error in
     the administrative judge’s dismissal of the VERA appeal. See, e.g., Kinler v. General
     Services Administration, 44 M.S.P.R. 262, 263 (1990) (finding the Board may, in the
     interest of judicial efficiency, dismiss an appeal due to the pendency of another appeal
     before the Board, so long as the identity of the issues exists and the controlling issues
     in the dism issed appeal will be determ ined in the other appeal).
     4
      We are unable to consider such evidence because the appellant has not included it with
     his petition and contends that the agency continues to make it unavailab le to him. PFR
     File, Tab 2 at 14. In any event, such evidence would not be material under 5 C.F.R.
     § 1201.115(d) because it is not relevant to the issue of res judicata and thus would not
     warrant an outcome different from that of the initial decision. See, e.g., Le v. U.S.
     Postal Service, 114 M.S.P.R. 430, ¶ 6 (2010).
     5
       For example, the appellant attaches a copy of EEOC’s decision granting summary
     judgment in favor of the agency, letters and appeals challenging the merits of the EEOC
                                                                                            5

      File, Tab 2 at 6-12, 15-24, Tabs 5, 8-20. The agency has filed a response in
      opposition to the appellant’s petition and the appellant has filed a reply. PFR
      File, Tabs 6-7.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶8          The appellant’s arguments on review do not provide a basis to disturb the
      initial decision to the extent that he fails to allege any specific error in the
      administrative judge’s application of res judicata in the instant matter. PFR File,
      Tab 2. In addition, because the material facts relevant to the res judicata issue
      are undisputed, we find that the administrative judge did not err in declining to
      conduct a hearing.
¶9          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. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332,
      337 (1995). 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. Id.
¶10         As the administrative judge correctly found, the record indicates that all of
      these criteria are satisfied.     ID at 3.    The prior judgements, affirming the
      appellant’s indefinite suspension and removal, were rendered by a forum with


      administrative judge’s decision, deposition notes, witness lists, and documents relating
      to motions he filed before the EEOC as well as other documentation addressing the
      merits of the agency’s actions. PFR File, Tabs 5, 8-20. The Board will not consider
      evidence submitted for the first time on review absent a showing that it was unavailable
      before the record was closed below despite the party’s due diligence. Avansino v. U.S.
      Postal Service, 3 M.S.P.R. 211, 214 (1980). Thus, to the extent that the appellant’s
      evidence was available prior to the close of the record and not submitted we need not
      consider it now, and, in any event, he has not shown how his submissions are relevant
      to the issue currently before the Board, whether the appellant’s appeal is precluded
      under the doctrine of res judicata.
                                                                                       6

competent jurisdiction, the Federal Circuit, pursuant to 28 U.S.C. § 1295(a)(9),
and thus the first element is met. The second and third elements are also met.
The appellant has provided no evidence that he pursued any further appeals of
the Federal Circuit’s decisions. Therefore, the Federal Circuit decisions were
final judgments on the merits for purposes of res judicata. 6 Last, like his prior
cases, the instant appeal involves the same causes of action, review of his June
15, 2009 indefinite suspension and June 29, 2010 removal, and the same parties,
the appellant and the Department of Defense, were involved in both the initial
appeals and the appeal currently before us.         Accordingly, we agree with the
administrative judge that this appeal is barred by res judicata. 7

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:

6
   The Federal Circuit issued final judgments on the merits concerning whether the
appellant was provided the statutorily mandated due process to which he was entitled
with respect to his indefinite suspension and removal following the revocation of his
security clearance, but found that it could not consider the appellant’s claims that such
actions were discriminatory or taken in retaliation because it lacked the authority to
review the merits of a security clearance action. Adams, 371 F. App’x at 95-96; Adams,
688 F.3d at 1334. To the extent that the appellant now asserts a new theory of
discrimination based on his race in connection with his indefin ite suspension appeal, he
is barred by res judicata from raising it in the instant appeal because he could have
raised it in the prior appeal, but did not. See, e.g., Sabersky v. Department of Justice,
91 M.S.P.R. 210, ¶ 8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 2003).
7
  The agency’s issuance of a FAD, which erroneously included Board appeal rights,
does not convey Board appeal rights to the appellant. See Campion v. Merit Systems
Protection Board, 326 F.3d 1210, 1215 (Fed. Cir. 2003) (the Board’s jurisdiction
cannot be expanded by the agency’s erroneous notice of appeal rights).
                                                                                    7



                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
                                                                            8

representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
