NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3285
JOSEPH P. CARSON,
Petitioner,
v.
DEPARTMENT OF ENERGY,
Respondent.
Jospeh P. Carson, of Knoxville, Tennessee, pro se.
Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3285
JOSEPH P. CARSON,
Petitioner,
v.
DEPARTMENT OF ENERGY,
Respondent.
Petition for review of the Merit Systems Protection Board in consolidated cases
AT-1221-96-0948-C-7, AT-1221-98-0250-C-7, and AT-1221-98-0623-C-7.
__________________________
DECIDED: October 9, 2009
__________________________
Before MAYER, LINN, and PROST, Circuit Judges.
PER CURIAM.
Joseph P. Carson appeals a final decision of the Merit Systems Protection Board
dismissing both his petition for enforcement and his individual right of action (“IRA”)
appeal as barred by res judicata. See Carson v. Dep’t of Energy, Nos. AT-1221-98-
0250-C-7, AT-1221-96-0948-C-7, AT-1221-98-0623-C-7 (M.S.P.B. Nov. 21, 2007). We
affirm.
The doctrine of res judicata serves to “relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). The
doctrine is applied when: (1) a prior decision was rendered by a forum with competent
jurisdiction, (2) the prior decision was a final decision on the merits, and (3) the same
cause of action and the same parties were involved in both cases. Carson v. Dep’t of
Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005) (“2005 Carson Decision”). Since all three
criteria are satisfied here, the board correctly determined that Carson’s appeal is barred
by res judicata.
The long history of Carson’s many claims against the agency is summarized in
our 2005 Carson Decision and need not be repeated here. See 398 F.3d at 1371-75.
The central thrust of his present claim is that the agency failed to comply with the
board’s order in Carson v. Dep’t of Energy, 85 M.S.P.R. 171 (2000) (“Reassignment
Order”), which required the agency to: (1) cancel Carson’s reassignment, (2) restore
him to the full range of duties and responsibilities of his previous position, and (3)
comply with its order within twenty days. The agency complied with this order by
cancelling Carson’s reassignment and restoring the full range of his previous job
responsibilities. Carson contends, however, that the agency, in retaliation for his
protected whistle-blowing activities, failed to act within twenty days of the board’s order.
Carson’s claims of retaliatory animus related to the agency’s alleged failure to
comply with the board’s Reassignment Order were, or should have been, raised in his
prior appeals. In his 2005 appeal to this court, Carson asserted that the agency violated
the Reassignment Order by failing to consider his application for two GS-14 positions at
the agency’s Oak Ridge facility. See 2005 Carson Decision, 398 F.3d at 1375. We
concluded, however, that his claims were barred by res judicata since the board, in
Carson v. Dep’t of Energy, 88 M.S.P.R. 260 (2001), had conclusively determined that
2008-3285 2
the agency had fully complied with the Reassignment Order. We explained that “the
Board’s unappealed Final Order . . . [holding] . . . that the Agency had complied with the
full scope of relief accorded Carson in his original IRA appeal . . . precludes all claims of
non-compliance that could have been raised in his original enforcement action.” Id. at
1376.
A similar analysis applies here. Because Carson has already litigated the issue
of the agency’s compliance with the Reassignment Order, he is barred from now
asserting that the agency’s failure to act within the prescribed twenty-day period
constituted a violation of that order. Res judicata serves to bar claims that were not, but
should have been, advanced in an earlier proceeding:
The preclusive effects of former adjudication are . . . referred to
collectively by most commentators as the doctrine of “res judicata.” Res
judicata is often analyzed further to consist of two preclusion concepts:
“issue preclusion” and “claim preclusion.” Issue preclusion refers to the
effect of a judgment in foreclosing relitigation of a matter that has been
litigated and decided. This effect is also referred to as direct or collateral
estoppel. Claim preclusion refers to the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of a
determination that it should have been advanced in an earlier suit. Claim
preclusion therefore encompasses the law of merger and bar.
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (internal
citations omitted).
Contrary to Carson’s assertions, a “different agency party” was not involved in his
prior claims. The Department of Energy was the respondent in his prior appeals.
We have considered Carson’s remaining arguments as to why the doctrine of res
judicata should not apply to his present appeal, but find them unpersuasive.
2008-3285 3