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Carson MSPB Cases

Carson MSPB Cases

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Joseph P. Carson, Appellant, v. Department of Energy, Agency.
 Docket No. AT-1221-98-0250-C-7, AT-1221-96-0948-C-7, AT-1221-98-0623-C-7MERIT SYSTEMS PROTECTION BOARDJune 23, 2008
COUNSEL:
[***1]Joseph P. Carson, Knoxville, Tennessee, Pro se.Mary D. Copeland, Esquire, Oak Ridge, Tennes-see, for the agency.
OPINION BY:
SPENCER
OPINION:
[**216]
BEFORE
 Neil A. G. McPhie, ChairmanMary M. Rose, Vice Chairman
OPINION AND ORDER
 [*P1] The appellant has filed a petition for review(PFR) of a compliance initial decision (CID) that dis-missed his petition for enforcement (PFE) of theBoard's final decision in
Carson v. Department of En-ergy
, 85 M.S.P.R. 171 (
Carson I 
),
dismissed per curi-am
, 243 F.3d 567 (Fed. Cir. 2000) (Table), as barred byres judicata and that denied his motion to have hiswhistleblower reprisal claim docketed as an individualright of action (IRA) appeal. For the reasons discussedbelow, we GRANT the PFR under 5 C.F.R. §1201.115, AFFIRM the CID as to its finding that theappellant's allegations of agency noncompliance withthe Board's decision in
Carson I 
are barred by the doc-trine of res judicata, REVERSE the CID as to its find-ing that the appellant cannot raise a cognizable IRAclaim of whistleblower reprisal, and DISMISS the IRAappeal as barred by the doctrine of res judicata.BACKGROUND[*P2] In [***2] January 1990, the appellant be-gan his employment with the agency as a GS-14 Gen-eral Engineer in the Site Resident Program of the agen-cy's Office of Environment, Safety and Health (EH) atOak Ridge Laboratory in Oak Ridge, Tennessee. Com-pliance File (CF), Tab 1, Exhibit 4 at 3. Between 1991and 1997, the appellant made [**217] numerous dis-closures involving safety issues.
 Id.
at 4. From 1996 to1998, the appellant filed three IRA appeals against theagency alleging that the agency had retaliated againsthim for his whistleblowing activity by: rating his per-formance in 1995 as "exceeds fully successful" ratherthan "outstanding"; removing surveillance duties fromhis work responsibilities in 1997; issuing a letter of admonishment to him on December 19, 1997; and di-recting his reassignment from Oak Ridge to EH Head-quarters in Germantown, Maryland, in December 1997.CF, Tab 1, Exhibit 3 at 1-2, 6.[*P3] After joining the three IRA appeals andholding a hearing on them, the administrative judge(AJ) issued an initial decision (ID) on April 29, 1999,granting the appellant's request for corrective actionwith respect to the above personnel actions, except forhis 1995 performance appraisal, [***3] and orderingthe agency to provide interim relief to the appellant if aPFR were filed with the full Board. CF, Tab 1, Exhibit3 at 6-7, 14. The agency afforded the appellant the or-dered interim relief by reassigning him to his formerposition at Oak Ridge and filed a PFR with the Board.
Carson v. Department of Energy
, 398 F.3d 1369, 1372(Fed. Cir. 2005).[*P4] In July 1999, the EH office decided toeliminate the EH Site Resident Program and on Sep-tember 9, 1999, the appellant's supervisor advised himthat he would be reassigned to EH Headquarters inGermantown in the summer of 2000. CF, Tab 1, Exhib-it 4 at 4-5;
Carson
, 398 F.3d at 1372. On November 15,1999, the appellant applied for two vacant GS-15 posi-tions in Oak Ridge Operations (ORO), a regional officeof the EH Office located in Oak Ridge. CF, Tab 1, Ex-hibit 4 at 6. He was not selected for these positions,which were open only to ORO employees.
 Id.
 [*P5] In its February 3, 2000 Opinion and Orderin
Carson I 
, the Board denied the agency's PFR of theApril 29, 1999 ID and directed the agency to cancel theletter of admonishment, cancel the directed reassign-ment from Oak Ridge [***4] to Germantown, andreturn the appellant to the full range of duties and work assignments consistent with his position descriptionand past assignments. 85 M.S.P.R. 171, PP 2, 9. TheBoard also ordered the agency to complete this actionno later than 20 days after the date of the decision.
 Id.
,P 9.[*P6] On February 23, 2000, the agency notifiedthe appellant that, although the EH Site Resident Pro-gram was being abolished, he would be transferred toGermantown on paper but would be allowed to physi-cally remain at Oak Ridge and work from a site withincommuting distance from his home. CF, Tab 1, Exhibit16. On February 25, 2000, the appellant applied foranother vacant GS-15 position in ORO that was openonly to current ORO employees.
Carson
, 398 F.3d at1372. ORO denied the appellant's application because
 
 
2
he was employed [**218] at EH Headquarters inGermantown, not at ORO in Tennessee.
 Id.
 [*P7] On March 2, 2000, the appellant filed aPFE of the Board's February 3, 2000 final order in
Car-son I 
, claiming that the agency was not in compliancewith this order because, after it abolished his formerposition in Oak Ridge, it again directed [***5] hisreassignment to Germantown. CF, Tab 1, Exhibit 11 at1, 4;
Carson
, 398 F.3d at 1372-73. The AJ agreed and,in an October 5, 2000 CID, recommended that theBoard enforce its final decision in
Carson I 
if the agen-cy did not bring itself into compliance with the finalorder in
Carson I 
by assigning the appellant to a GS-14position within the commuting area of Oak Ridge thatmost closely complied with the Board's final order. CF,Tab 1, Exhibit 11 at 8-9. The agency decided to com-ply with the AJ's recommendation and in November2000 it transferred the appellant to the position of GS-14 Technical Facility Representative in ORO.
 Id.
, Ex-hibit 4 at 5;
Carson
, 398 F.3d at 1373.[*P8] In an Opinion and Order issued on April26, 2001, the Board found that the agency had com-plied with the Board's final order in
Carson I 
and dis-missed the appellant's PFE as moot.
Carson v. Depart-ment of Energy
, 88 M.S.P.R. 260, P P 1, 12 (2001)(
Carson II 
). The Board declined to consider the appel-lant's claims of noncompliance with the final order in
Carson I 
based on his rejection for the three GS-15positions as "not appropriately [***6] before theBoard in this compliance proceeding," noting that theappellant had filed an IRA appeal concerning his non-selection for those positions.
 Id.
, P 11. The Board'sdecision in
Carson II 
became final.[*P9] On October 3, 2000, the appellant filed theIRA appeal that the Board referenced in
Carson II 
,alleging that the agency's failure to reassign him toORO in the fall of 1999 and to consider and/or selecthim for one of the three GS-15 positions for which heapplied constituted reprisal for his whistleblowing ac-tivity that was the subject of his IRA appeal in
Carson I 
. CF, Tab 1, Exhibit 4 at 1-6. After holding the re-quested hearing, the AJ issued an ID on February 27,2002, dismissing the IRA appeal for failure to state aclaim upon which relief may be granted based on herfinding that the appellant failed to show that he was nottransferred to ORO before November 2000 in reprisalfor his whistleblowing.
 Id.
at 15. Having found no re-taliatory motive, the AJ declined to address the issue othe appellant's nonselection for the three GS-15 posi-tions at ORO for which he applied because he was notan employee at ORO and thus did not qualify to beconsidered [***7] for those positions.
 Id.
at 16. The IDbecame final on July 9, 2003, when the Board deniedthe appellant's PFR.
Carson v. Department of Energy
,94 M.S.P.R. 480 (2003) (Table); CF, Tab 1, Exhibit 22.[**219] [*P10] On March 23, 2002, the appel-lant filed another PFE of 
Carson I 
, alleging that theagency improperly failed to consider his application fortwo GS-14 positions in reprisal for his whistleblowingactivity that was the subject of 
Carson I 
. CF, Tab 1,Exhibit 20 at 1-2. The AJ denied the PFE in a CID is-sued on May 29, 2002, explaining that in
Carson II 
theBoard found that the agency had complied with all of the specific directives contained in the Board's finalorder in
Carson I. Id.
at 2. The AJ also found that theagency's failure to consider the appellant's applicationfor the GS-14 positions could not constitute a failure tocomply with the Board's final order in
Carson I 
be-cause the order did not require that the agency considerthe appellant's application for any particular position.
 Id.
As for the appellant's reprisal claim, the AJ foundthat, "[t]he appellant simply cannot use the [PFE] pro-cess in order to challenge these [***8] nonselectionsbecause there is no connection between the agency'salleged action and the relief contained in the Board'sfinal order."
 Id.
at 3. The CID became final on July 7,2003, when the Board denied the appellant's PFR.
Car-son v. Department of Energy
, 94 M.S.P.R. 480 (2003)(Table); CF, Tab 1, Exhibit 21.[*P11] The appellant filed a petition for judicialreview of both the Board's final decision dismissing hisOctober 3, 2000 IRA appeal for failure to state a claimupon which relief may be granted and the Board's finaldecision denying his March 23, 2002 PFE of theBoard's final order in
Carson I 
with the U.S. Court of Appeals for the Federal Circuit. The court affirmedboth of the Board's final decisions in an opinion issuedon March 1, 2005.
Carson
, 398 F.3d 1369. With regardto the PFE, the appellant argued that the Board erred inrefusing to consider his claims for retroactive reas-signment to ORO and the resulting nonselection forseveral vacant positions at ORO as part of his March23, 2002 PFE of 
Carson I. Id.
at 1374. He contendedthat these noncompliance claims were not precluded bythe Board's final order [***9] in
Carson II 
because theprecise issues -- the agency's failure to make his No-vember 2000 reassignment to ORO retroactive to Sep-tember 1999 and his ensuing non-consideration forORO vacancies -- were not before the Board in thatprior enforcement proceeding.
 Id.
 [*P12] The Federal Circuit rejected this argu-ment, finding that the criteria for applying the doctrineof claim preclusion -- which the court described as oneform of res judicata -- had been satisfied in this case.
Carson
, 398 F.3d at 1375. The court explained that,under this doctrine, "the Board's unappealed Final Or-der in
Carson II 
-- that the Agency had complied with
 
 
3
the full scope of relief accorded [the appellant] in hisoriginal IRA appeal -- precludes all claims of noncom-pliance that could have been raised in his original en-forcement action."
 Id.
at 1376. Applying this doctrine,the court found that, because both [**220]
Carson II 
 and the Board's final decision on the appellant's secondPFE on review before the court involved allegations of agency noncompliance with
Carson I 
, he could haveraised the retroactive reassignment and nonselectionclaims before the Board [***10] in his first enforce-ment proceeding.
 Id.
at 1375-76. Therefore, the courtheld, the appellant waived his present noncomplianceclaims of retroactive reassignment and nonselection byfailing to raise them in
Carson II. Id.
at 1376.[*P13] Addressing the Board's dismissal of theappellant's October 3, 2000 IRA appeal for failure tostate a claim upon which relief may be granted, theFederal Circuit rejected the appellant's argument thatthe Board erred in requiring that he show retaliatoryanimus in the agency's failure to retroactively reassignand treat him as an ORO incumbent for the variousGS-15 vacancies at ORO.
Carson
, 398 F.3d at 1376.The court held that the Board properly dismissed theappellant's second IRA appeal for failing to prove thatagency retaliation was a contributing factor to the chal-lenged personnel actions.
 Id.
at 1377.[*P14] On August 10, 2007, the appellant filedthis PFE with the Board, alleging that the agency failedto take the corrective action that the Board ordered in
Carson I 
within twenty days of the decision, as re-quired by
Carson I 
, in reprisal for his whistleblowing[***11] activity that was the subject of 
Carson I 
andfor "successfully pursuing a whistleblower appeal atthe Board" in
Carson I.
n1 CF, Tab 1 at 8. He request-ed a hearing.
 Id.
at 2.n1 In his August 10, 2007 filing, the appellantalso alleged that the agency failed to correctlyprocess three agency grievances that he pre-sented in late 1999 and early 2000 regarding hiseligibility to apply for vacancies in the ORO.CF, Tab 1 at 8-9, 11, Exhibits 14, 18. The AJdid not address this allegation in the CID. Be-cause the appellant has not raised the issue onreview, we find that the appellant has aban-doned this claim.
See Manning v. Department of Homeland Security
, 104 M.S.P.R. 533, P 6n.3 (2007).[*P15] Although the appellant stated that he wasfiling an IRA appeal of the agency's failure to complywith the final order in
Carson I 
, CF, Tab 1 at 5-6, 8(appellant's answers to questions 18, 30-31), and filed acopy of the April 11, 2007 complaint that he had filedwith the Office [***12] of Special Counsel (OSC),
id.
,Exhibit 1, the AJ treated the filing as a PFE of theBoard's final decision in
Carson I 
rather than as an IRAappeal based on his conclusion that the appellant hadnot exhausted his administrative remedies before OSC.CF, Tab 2 at 1 n.*. The appellant then filed a "Motionto Re-docket the Case as a New Whistleblower Ap-peal," asserting that the requirements for filing an IRAappeal with the Board had been met because 120 dayshad passed since he filed his request for corrective ac-tion with OSC on April 11, 2007. CF, Tab 4.[**221] [*P16] The agency moved to dismissthe PFE as barred by the doctrine of res judicata andalso argued that the appellant's allegations appeared tobe untimely filed because the PFE was filed more thanseven years after the alleged noncompliance with thefinal order in
Carson I 
. CF, Tab 8.[*P17] In response, the appellant stated that heagreed with the agency that res judicata precludes thisPFE, he requested that the PFE be dismissed, and heasserted that he was filing a "new [IRA] appeal." CF,Tab 9 at 4-5. The following day, the AJ returned the"appeal" to the appellant on the grounds that the mate-rial he [***13] submitted was "already the subject of an appeal and motion currently pending before" the AJ.CF, Tab 16, Exhibit 4. On September 13, 2007, theappellant submitted a September 7, 2007 letter fromOSC notifying him that OSC had issued a closure letterthat same day of its inquiry into his allegations and thathe may have the right to seek corrective action fromthe Board. CF, Tab 13 at 7. He again requested that theAJ docket his whistleblower reprisal claim as an IRAappeal.
 Id.
at 4.[*P18] Without holding the requested hearing,the AJ dismissed the appellant's PFE as barred by thedoctrine of res judicata and denied the appellant's mo-tion to have his reprisal claim docketed as a separateappeal pursuant to the Whistleblower Protection Act(WPA). CF, Tab 18 (CID). The AJ determined that, if he were to docket the reprisal claim as a separate IRAappeal, he would then have to dismiss the appeal forlack of jurisdiction because the appellant would beunable to show that the agency took or failed to take a"personnel action" under 5 U.S.C. § 2302(a)(2)(A),(b)(8) of the WPA. CID at 3-4.[*P19] In his PFR, the appellant argues that theAJ erred by [***14] docketing his case as a PFE ratherthan as an IRA appeal and contends that the agency'sfailure to meet the time limit for taking the correctiveaction ordered in
Carson I 
constitutes a failure to take apersonnel action under 5 U.S.C. § 2302(b)(8), notwith-

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