NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3158,-3162,-3163,-3164
MARSHA L. PAYTON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Marsha L. Payton, of Alexandria, Virginia, pro se.
Ronald G. Morgan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Harold D. Lester, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3158, -3162, -3163, -3164
MARSHA L. PAYTON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Petition for review of the Merit Systems Protection Board in
AT3443070682-I-1, AT1221070681-W-1, AT0752070679-I-1, and
AT0351070680-I-1.
__________________________
DECIDED: November 19, 2008
__________________________
Before NEWMAN, PLAGER, and SCHALL, Circuit Judges.
PER CURIAM.
Marsha L. Payton petitions for review of four decisions of the Merit Systems
Protection Board (Board) relating to her removal from her position with the United
States Customs and Border Patrol in the Department of Homeland Security. We affirm
the Board’s dismissal of all four of Ms. Payton’s appeals.
Ms. Payton was removed in September 2004 for misconduct, and she appealed
her removal to the Board. The administrative judge (AJ) assigned to her case affirmed
the agency’s removal action in February 2005. 1 The AJ’s decision became the final
decision of the Board when the Board denied her petition for review. In March 2006,
Ms. Payton filed a petition for review of the Board’s decision, but the Clerk’s office of
this court returned it as untimely filed.
In May 2007, Ms. Payton filed four new appeals with the Board asserting various
reasons that her 2004 removal was improper. In September 2007, the AJ to whom all
four appeals were assigned dismissed each one for lack of jurisdiction or because it
was barred by res judicata. The AJ’s initial decisions became final when the Board
denied Ms. Payton’s petitions for review. Ms. Payton timely appealed all four Board
decisions; the case before us is the consolidation of those appeals.
In appeal no. 2008-3158, Ms. Payton challenges the Board’s dismissal of an
appeal in which she alleged that the agency breached a March 2001 settlement
agreement resolving several equal employment opportunity (EEO) complaints of
discrimination. 2 The Board has jurisdiction to enforce a settlement agreement “if the
underlying appeal is within the Board’s jurisdiction and the settlement was entered into
the record.” Lutz v. United States Postal Serv., 485 F.3d 1377, 1380 n.2 (Fed. Cir.
2007). Ms. Payton and the agency entered into the March 2001 settlement agreement
in connection with an appeal before the U.S. Equal Employment Opportunity
Commission, not an appeal before the Board. The underlying complaint for
discrimination did not involve an action appealable to the Board, and therefore the
1
Payton v. Dep’t of Homeland Sec., No. AT-0752-05-0043-I-1 (Feb. 10,
2005).
2
Payton v. Dep’t of Homeland Sec., No. AT-3443-07-0682-I-1 (Sept. 10,
2007).
2008-3158, -3162, -3163, -3164 2
Board properly dismissed for lack of jurisdiction Ms. Payton’s appeal alleging breach of
the settlement agreement.
In appeal no. 2008-3162, Ms. Payton challenges the Board’s dismissal of her
Individual Right of Action (IRA) appeal for lack of jurisdiction. 3 The AJ dismissed the
appeal because Ms. Payton failed to show that she had sought relief from the Office of
Special Counsel (OSC) and that OSC had terminated its investigation of her complaint.
The record includes two letters from OSC dated July 15, 2004, indicating that OSC had
terminated its inquiry into whistleblower allegations made by Ms. Payton. The record
also contains two letters addressed to OSC from Ms. Payton that apparently refer to
OSC’s terminations on August 25, 2006, and September 25, 2006, of other
investigations into complaints made by Ms. Payton. Even if the AJ had considered this
evidence that Ms. Payton had sought relief from OSC and that OSC had terminated its
investigations, Ms. Payton’s May 2007 appeal several months after OSC’s last
termination notice was untimely. See 5 C.F.R. § 1209.5 (IRA appeal must be filed
within sixty days of receiving notice of termination or sixty-five days from the date of the
termination letter). Therefore, the Board did not err in dismissing Ms. Payton’s IRA
appeal.
In appeal no. 2008-3163, Ms. Payton seeks review of the Board’s dismissal of an
appeal as barred by res judicata. 4 In that case, Ms. Payton directly challenged her
2004 removal, asserting many of the same arguments that the Board rejected in its
3
Payton v. Dep’t of Homeland Sec., No. AT-1221-07-0681-W-1 (Sept. 6,
2007).
4
Payton v. Dep’t of Homeland Sec., No. AT-0752-07-0679-I-1 (Sept. 10,
2007).
2008-3158, -3162, -3163, -3164 3
February 2005 decision. The doctrine of res judicata, also known as claim preclusion,
prevents parties from litigating claims that were, or could have been, raised in an earlier
action. Carson v. Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005). It applies
when “(1) the 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 or their privies were involved in both cases.” Id. Because the Board in
2005 entered final judgment sustaining Ms. Payton’s removal on the merits, the Board
in 2007 properly dismissed a second appeal of the removal on res judicata grounds.
In appeal no. 2008-3164, Ms. Payton seeks review of the Board’s dismissal of
another appeal from the agency’s removal action. 5 In this case, Ms. Payton seemingly
argued before the Board that she was removed pursuant to a reduction in force (RIF),
and that the agency did not employ correct RIF procedures in effecting her removal.
The record clearly shows, however, that Ms. Payton was removed for misconduct, not
pursuant to a RIF. She also appears to argue that her 2001 reassignment to the Miami
Seaport was part of a RIF. The record, however, indicates that Ms. Payton was
reassigned pursuant to the 2001 EEO settlement agreement, not pursuant to a RIF.
Accordingly, the Board correctly dismissed this appeal.
Finally, to the extent Ms. Payton asks us to review the Board’s 2005 decision
affirming her removal, that decision is not before us. In March 2006, this court correctly
determined that her petition for review was untimely. Nothing has changed that would
make a new appeal any more timely.
5
Payton v. Dep’t of Homeland Sec., No. AT-0351-07-0680-I-1 (Sept. 7,
2007).
2008-3158, -3162, -3163, -3164 4
COSTS
Each party shall bear its own costs.
2008-3158, -3162, -3163, -3164 5