             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
             is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit

                                     06-3002

                             PATRICIA A. MORTON,

                                                Petitioner,

                                        v.

                     UNITED STATES POSTAL SERVICE,

                                                Respondent.

                            ____________________

                           DECIDED: March 10, 2006
                            ____________________

Before LOURIE, LINN, and DYK, Circuit Judges.

PER CURIAM.

      Patricia A. Morton appeals from the final decision of the Merit Systems

Protection Board (“Board”) dismissing her appeal from the United States Postal

Service (the “USPS”) for lack of jurisdiction. Morton v. U.S.P.S., No. AT-0752-

05-0367-I-1 (M.S.P.B. Aug. 18, 2005). Because the Board did not err in holding

that her claim was barred by res judicata, we affirm.

                                 BACKGROUND

      Morton, a USPS employee, was removed from her position as a Mail

Handler, effective July 6, 1994. She appealed her removal but the appeal was

dismissed as moot based upon the USPS’s representation that it would return

her to the status quo ante.      Morton v. U.S.P.S., No. AT-0752-95-0209-I-1
(M.S.P.B. March 17, 1994) (“Morton I”). The initial decision became final on

October 4, 1995 with no subsequent appeal to this court.         See 5 C.F.R. §

1201.113 (2004). In June 1996, Morton filed a petition for enforcement of the

initial decision in Morton I, alleging that she had not been returned to the status

quo ante. In addition, Morton asserted that she was entitled to compensatory

damages. The Administrative Judge (“AJ”) determined that the USPS had not

made Morton completely whole and adjudicated her originally-filed appeal of the

removal decision. Morton v. U.S.P.S., No. AT-0752-95-0209-C-1; No. AT-0752-

95-0209-I-2 (M.S.P.B. Oct. 30, 1996) (“Morton II”). The AJ concluded that the

USPS did not prove its charges against Morton, reversed the USPS’s removal

decision, and ordered the USPS to restore Morton to the status quo ante. The

AJ did not address Morton’s request for compensatory damages. When neither

party filed a petition for review, the initial decision became final on December 4,

1996. See 5 C.F.R. §1201.113 (2004).

      On February 5, 1997, Morton filed a petition for enforcement of the

decision in Morton II. The AJ required the USPS to submit evidence that it had

complied with the decision in Morton II. After reviewing the submitted evidence

of payment, the AJ found that the USPS complied with the decision in Morton II

and dismissed the petition for enforcement. See Morton v. U.S.P.S., No. AT-

0752-95-0209-C-1 (M.S.P.B. June 27, 1997) (“Morton III”).

      Morton filed a petition for review of the Morton III decision by the full

Board. See Morton v. U.S.P.S., No. AT-0752-95-0209-C-1 (M.S.P.B. July 30,

1999) (“Morton IV”). The Board issued an order to show cause, requiring the




06-3002                                 2
USPS to submit further evidence of compliance with the decision in Morton II.

The USPS responded to that order, and Morton replied by requesting punitive

and compensatory damages based on an allegation of discrimination by the

USPS.     The Board found that USPS’s evidence submitted in response to the

order to show cause was insufficient to prove compliance and therefore reversed

the AJ’s decision in Morton III.   The Board determined that the requests for

punitive and compensatory damages were not properly before it because they

were not raised in the petition for enforcement. The Board observed that even if

the damages issue were properly before it, the Board could not award

compensatory damages because they could only be awarded based on a finding

of discrimination. Moreover, the Board noted that it could not order an agency to

pay punitive damages.

        On August 26, 1999, the USPS submitted evidence that the Board found

sufficient to prove that Morton had returned to the status quo ante. On October

12, 1999, the Board dismissed her February 5, 1997 petition for enforcement of

the Morton II decision as moot. See Morton v. U.S.P.S., No. AT-0752-95-0209-

X-1 (M.S.P.B. October 12, 1999) (“Morton V”).     Morton appealed the denial of

her request for compensatory and punitive damages in Morton IV and the

Board’s dismissal of her petition for enforcement in Morton V. We affirmed the

Board’s determination that the damages issue was raised for the first time on

petition for review and was therefore not properly before the Board. Morton v.

U.S.P.S., 232 F.3d 911 (Fed. Cir. 2000). (“Morton VI”)




06-3002                                3
      On February 17, 2005, Morton filed another appeal to the Board, again

challenging her July 6, 1994 removal and requesting compensatory damages.

The AJ issued an Acknowledgement Order, informing the parties that the appeal

presented a jurisdictional issue and affording them an opportunity to submit

argument and evidence on that issue. The USPS filed a motion to dismiss for

lack of jurisdiction. Morton filed a submission to the Board but failed to address

the USPS’s motion to dismiss or the jurisdictional issue.1

      The AJ then dismissed the appeal for lack of jurisdiction on the basis of

res judicata and collateral estoppel. Morton v. U.S.P.S., No. AT-0752-05-0367-I-

1 (March 28, 2005) (“Morton VII”).    The AJ determined that res judicata applied

because Morton “previously brought a cause of action under the same operative

facts on which this appeal is based.” Id., slip op. at 4. Also, according to the AJ,

Morton’s request for compensatory damages was barred by collateral estoppel,

because in connection with the challenge of her removal, we previously

addressed and denied her request for damages. Id.; See Morton VI. Morton

appealed the AJ’s decision to the full Board, which denied her petition for review,

thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b) (2004).

      Morton timely appealed to this court, and we have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9) (2000).




      1
              In her reply petitioner for the first time asserts that the AJ’s
Acknowledgement Order was not properly served on her because it was mailed
to the incorrect address. Petitioner makes no effort to demonstrate prejudice
from this error, if it occurred, and there appears to be no dispute as to the fact
that petitioner’s damages claims were raised and resolved in the earlier
proceedings.


06-3002                                  4
                                  DISCUSSION

       Whether the Board has jurisdiction to adjudicate a particular appeal is a

question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326

F.3d 1210, 1213 (Fed. Cir. 2003). Morton, as the petitioner, has the burden of

establishing the Board’s jurisdiction by a preponderance of the evidence. See id.

at 1213-14.

       On appeal, Morton contends that the USPS committed fraud in connection

with her 1994 removal. Specifically, she contends that the USPS improperly

charged her with falsifying papers, thereafter suspending and ultimately removing

her.   She further asserts that over several years she has provided evidence to

show that she did not falsify papers but that evidence was not properly

considered.     Morton also asserts that the USPS has not adequately

compensated her for her alleged wrongful removal. The government responds

that the Board properly dismissed the appeal of her 1994 removal on the basis of

res judicata because the merits of her removal were previously raised and

decided.

       We conclude that the Board properly decided that it did not have

jurisdiction over Morton’s appeal on the ground of res judicata. “Under the

doctrine of res judicata, a final argument on the merits of an action precludes the

parties from relitigating issues that were raised or could have been raised in that

action.” Stearn v. Dep’t of the Navy, 280 F.3d 1376, 1380 (Fed. Cir. 2002)

(citation omitted). Res judicata applies if “(1) the prior decision was rendered by

a forum with competent jurisdiction; (2) the prior decision was a final decision on




06-3002                                 5
the merits; and (3) the same cause of action and the same parties or their privies

were involved in both cases.” Carson v. Dep’t of Energy, 398 F.3d 1369, 1375

(Fed. Cir. 2005). All three criteria are met here. In 1996, Morton filed an appeal

of her removal. The Board considered the evidence of record and rendered a

final decision on the merits of her 1994 removal in Morton II, reversing the

USPS’s action, and ordering the USPS to return Morton to the status quo ante.

Morton then filed a petition for enforcement in which we addressed the damages

issue in our decision in Morton VI. Morton has therefore already challenged her

removal action, and the Board found that the USPS improperly removed her.

Morton is asking this court to reevaluate aspects of her 1994 removal and alleges

that the compensation she received did not sufficiently make her whole.

However, in the decision in Morton V, the Board determined that she was made

whole.       Because she previously brought an appeal of her removal and a final

decision was rendered on that cause of action, she is precluded under the

doctrine of res judicata2 from bringing the present claim involving the same

operative facts. Accordingly, we affirm.




         2
              Because we decide this appeal based on the doctrine of res
judicata, we need not discuss collateral estoppel.


06-3002                                    6
