                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 22, 2015
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT
                      _________________________________

FRED JOHNSON,

       Petitioner,

v.                                                       No. 14-9619
                                              (MSPB -1: DE-1221-14-0012-W-1)
DEPARTMENT OF VETERANS                         (Merits Systems Protection Board)
AFFAIRS,

       Respondent.



                      _________________________________

                          ORDER AND JUDGMENT *
                      _________________________________

Before GORSUCH, MCKAY, and BACHARACH, Circuit Judges.
                _________________________________



      This appeal involves the application of res judicata. The petitioner, Mr.

Fred Johnson, was fired by the Department of Veterans Affairs. He proceeded in

arbitration, unsuccessfully claiming that the firing involved retaliation for

submitting a claim to the Equal Employment Opportunity Commission. Years


*
      The parties have asked us to decide the appeal based on the briefs, and we
conclude that oral argument would not prove beneficial. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have declined to require oral argument.

       Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel.
later, Mr. Johnson submitted an administrative claim to the Merit Systems

Protection Board, alleging retaliation for a different purpose (for reporting an

altercation). The Board dismissed the claim on the ground of res judicata. Mr.

Johnson appeals, requiring us to decide: Does res judicata preclude assertion of a

claim that could have been brought in the arbitration proceedings? We conclude

that res judicata applies in these circumstances. As a result, we affirm.

I.    Standard of Review

      We engage in de novo review over the Board’s application of res judicata.

MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005).

II.   Res Judicata

      The doctrine of res judicata prevents assertion of a claim that could have

been brought in an earlier proceeding that culminated in the entry of a final

judgment. MACTEC, Inc., 427 F.3d at 831. Four elements exist:

      1.     entry of a final judgment in the earlier proceedings,

      2.     identity or privity of the parties in the two suits,

      3.     identity of the cause of action in both suits, and

      4.     a full and fair opportunity to litigate the claim in the earlier
             proceedings.

In re Mersmann, 505 F.3d 1033, 1049 (10th Cir. 2007); Plotner v. AT&T Corp.,

224 F.3d 1161, 1168 (10th Cir. 2000). 1

1
      We have sometimes stated that only three elements exist, recognizing an
exception to res judicata when the claimant lacked a full and fair opportunity to

                                           2
III.   Application of Res Judicata

       Engaging in this review, we conclude that the four elements are present.

       The first element is satisfied because the earlier proceeding resulted in the

entry of a final arbitration award. See id. (“As for finality, a valid and final award

by arbitration generally has the same effect under the rules of res judicata as a

judgment of a court.”).

       The second element is satisfied because Mr. Johnson and the Department of

Veterans Affairs were parties in the two proceedings (the arbitration and

administrative proceedings brought before the Merit Systems Protection Board).

       The third element is satisfied because Mr. Johnson has brought the same

cause of action in the two proceedings. In applying the third element, we apply a

transactional approach. Petromanagement Corp. v. Acme-Thomas Joint Venture,

835 F.2d 1329, 1335 (10th Cir. 1998). Under this approach, the earlier cause of

action for retaliation included all claims or theories of recovery that had arisen

from the same event. Nwosun v. General Mills Rests., Inc., 124 F.3d 1255, 1257

(10th Cir. 1997). Multiple claims arising from the same employment relationship

constitute the same event. Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th

Cir. 2000). Under this test, the third element is satisfied because Mr. Johnson’s


litigate the matter in the earlier proceedings. Yapp v. Excel Corp., 186 F.3d 1222,
1226 n.4 (10th Cir. 1999); MACTEC, Inc., 427 F.3d at 831 n.6. Other times, we have
referred to the “full and fair opportunity” as a fourth element of res judicata. In re
Mersmann, 505 F.3d at 1049. The difference in approaches does not affect our
decision.

                                           3
claims in the two proceedings are based on the same event: his firing from the

Department of Veterans Affairs.

      The fourth element is satisfied because the arbitration provided a full and

fair opportunity to hear his present claim. He denies that opportunity, presenting

two arguments:

      1.     His union did not allow members to arbitrate claims involving
             individual rights or whistleblower actions.

      2.     He was not informed of all his available remedies after the firing.

We reject both arguments.

      The first argument is unpreserved and invalid because the present claim

could have been brought in arbitration.

      In the administrative proceedings, Mr. Johnson did not question his prior

opportunity to arbitrate a retaliation claim. Thus, the argument is forfeited. See

Gorsuch, Ltd. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1239 (10th Cir.

2014). Ordinarily, we could consider whether the Board committed plain error.

See id. But Mr. Johnson has not argued plain error. As a result, we decline to

consider the possibility of plain error. See Bishop v. Smith, 760 F.3d 1070, 1095

(10th Cir.), cert. denied, __ U.S. __, 135 S. Ct. 271 (2014).

      But Mr. Johnson’s new argument would remain invalid even under de novo

review. Individual employees are covered by a collective bargaining agreement

between the union and the Department of Veterans Affairs. Under that agreement,


                                          4
employees can submit a grievance regarding any matter relating to employment or

misapplication of a law affecting the conditions of employment. Master

Agreement, art. 42, § 2(A); see Johnson v. Department of Veterans Affairs, 625

F.3d 1373, 1376-77 (Fed. Cir. 2010) (holding that a letter, objecting to

termination of employment, constituted a grievance under Article 42 of the

collective bargaining agreement with the Department of Veterans Affairs). Thus,

Mr. Johnson could have submitted a grievance if he believed he had been fired for

reporting an altercation. In fact, the earlier arbitration included a grievance that

his firing involved retaliation for filing a claim with the Equal Employment

Opportunity Commission. R. at 237, 250, 371-73. Thus, Mr. Johnson could have

included his present claim in the earlier arbitration.

      Mr. Johnson argues that he could not file a separate action while he was in

arbitration. Appellant’s Opening Br. at 16, 19. This argument reflects confusion

over the issue. Res judicata prevents Mr. Johnson from suing a second time on

claims that he could have asserted in the proceedings being arbitrated, and

nothing in the collective bargaining agreement would have prevented Mr. Johnson

from combining his two retaliation claims (for submitting a claim to the Equal

Employment Opportunity Commission and for reporting an altercation) in a single

arbitration.

      The second argument is that the agency failed to inform Mr. Johnson of all

his available remedies after his firing. For the sake of argument, we can assume

                                           5
that the Board did not tell Mr. Johnson that he could arbitrate his present

retaliation claim. But even if the Board failed to disclose this remedy, it would

not have prevented a full and fair opportunity for Mr. Johnson to litigate his

present claim.

      The fourth element is “focus[ed] on whether there were significant

procedural limitations in the prior proceeding, whether the party had the incentive

to litigate fully the issue, or whether effective litigation was limited by the nature

or relationship of the parties.” Sil Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521

(10th Cir. 1990). Mr. Johnson has not argued that there were any procedural

limitations in the arbitration proceeding and we see no reason to question the

fairness of the proceeding. Under these circumstances, Mr. Johnson enjoyed a full

and fair opportunity to litigate his present claim in the earlier proceedings even if

the Board had not fully disclosed all available remedies. See Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 480-81 (1982) (holding that res judicata applies

unless “there is reason to doubt the quality, extensiveness, or fairness of

procedures followed in prior litigation”). 2

2
       Mr. Johnson argues that because he did not know about his available remedies,
his election of remedies is not binding. Appellant’s Opening Br. at 13. But our issue
involves res judicata rather than election of remedies. Election of remedies was an
issue in the Board proceedings, but not on appeal. See R. at 137. Here our issue
involves res judicata, rather than election of remedies, and the claims are subject to
res judicata even if Mr. Johnson did not know about his available remedies at the time
of the earlier proceedings. See W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871-72 (9th Cir.
1992) (“Ignorance of a party does not . . . avoid the bar of res judicata unless the
ignorance was caused by the misrepresentation or concealment of the opposing

                                           6
       Mr. Johnson also argues that the Board should have told him he could

request corrective action by the Office of Special Counsel. Appellant’s Opening

Br. at 18-19. But this argument does not bear on any of the elements of res

judicata. 3

       Because the four elements are satisfied, the doctrine of res judicata

prevented Mr. Johnson from suing anew — notwithstanding the invocation of a

new legal theory — after he had bypassed a full and fair opportunity to include

the present claim in the arbitration.

       Mr. Johnson argues in his reply that he was a good employee and should

not have been fired. But this argument involves the merits rather than the

applicability of res judicata. Because Mr. Johnson cannot avoid the doctrine of res

judicata, we decline to reach the merits of the underlying retaliation claim.

       The Merit Systems Protection Board applied res judicata, dismissing the

suit based on satisfaction of the four elements. We agree with the Board; as a

result, we affirm.




party.”); Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986) (discussing the
general rule that res judicata would remain applicable even when the plaintiff was
unaware of his present claim at the time of the earlier proceedings).
3
       Mr. Johnson ultimately did file a complaint with the Office of Special Counsel.
R. at 1968. The Office of Special Counsel declined to investigate because Mr.
Johnson had already filed a grievance over his firing. Id.

                                           7
Entered for the Court



Robert E. Bacharach
Circuit Judge




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