NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
_____________________
2016-1552
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-16-0128-I-1.
______________________
Decided: July 8, 2016
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
AARON WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; ROBERT E. NERTHLING, II, Office of the
General Counsel, Department of Health and Human
Services, Atlanta, GA.
______________________
2 JONES v. HHS
Before PROST, Chief Judge, BRYSON and WALLACH, Circuit
Judges.
PER CURIAM.
The U.S. Department of Health and Human Services
(“HHS”) announced two job vacancies in 2009. Veteran
John Paul Jones, III, applied for the positions, but HHS
did not select him for employment. Mr. Jones appealed
HHS’s decision not to hire him to the Merit Systems
Protection Board (“MSPB”), alleging a violation of the
Veterans Employment Opportunities Act of 1998
(“VEOA”), Pub. L. No. 105-339, 112 Stat. 3182 (codified as
amended in scattered sections of 2, 3, 5, 10, 28, 31, 38,
and 49 U.S.C. (2006)). 1 The MSPB denied Mr. Jones’s
request for relief in 2011.
Nearly six years after filing his first appeal, Mr. Jones
again appealed to the MSPB, this time alleging that HHS
violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), Pub. L.
No. 103-353, 108 Stat. 3149 (codified as amended at 38
U.S.C. §§ 4301–4333 (2012)), 2 when it did not select him
for one of the 2009 job vacancies. The MSPB dismissed
Mr. Jones’s appeal, finding it barred by the doctrine of res
judicata. See Jones v. Dep’t of Health & Human Servs.,
1 “Congress passed the VEOA to ensure that veter-
ans receive due consideration when they apply for vacant
positions available through the merit promotion process.”
Vassallo v. Dep’t of Def., 797 F.3d 1327, 1329 (Fed. Cir.
2015) (citation omitted).
2 Congress passed the USERRA to, inter alia, “pro-
hibit discrimination against persons because of their
service in the uniformed services.” 38 U.S.C. § 4301(a)(3).
JONES v. HHS 3
No. DE-4324-16-0128-I-1 (M.S.P.B. Jan. 21, 2016)
(Resp’t’s App. 4–7). 3
Mr. Jones appeals, contending the MSPB’s dismissal
contains various legal errors. This court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.
DISCUSSION
I. Standard of Review
We affirm the MSPB’s decision unless, inter alia, it is
“not in accordance with law.” 5 U.S.C. § 7703(c)(1) (2012).
The MSPB’s legal determinations are reviewed de novo.
Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed.
Cir. 2008). As a petitioner, Mr. Jones “bears the burden
of establishing error in the [MSPB’s] decision.” Harris v.
Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir.
1998) (citation omitted).
II. The Doctrine of Res Judicata Bars Mr. Jones’s Appeal
The doctrine of res judicata “prevents parties from lit-
igating issues that could have been raised in a prior
action” and arise from the same operative facts. Carson v.
Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005)
(citations and footnote omitted); see also Renville v. Dep’t
of Health & Human Servs., 632 F. App’x 611, 613 (Fed.
Cir. 2015) (unpublished) (“Res judicata serves to limit . . .
claims that the party could have raised in an earlier
action arising from the same transaction or occurrence.”
(citations omitted)). The doctrine 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
3 The MSPB dismissed Mr. Jones’s second appeal in
an initial decision, which became final once Mr. Jones did
not timely file a petition for review of that decision. See 5
C.F.R. § 1201.114(e) (2016).
4 JONES v. HHS
parties or their privies were involved in both cases.”
Carson, 398 F.3d at 1375 (citation omitted). The “same
cause of action” clause of the third Carson factor is met
when the same event gave rise to both suits, even if a
different legal theory is pled in each appeal. See, e.g.,
N.J. Inst. of Tech. v. Medjet, Inc., 47 F. App’x 921, 923–25
(Fed. Cir. 2002) (unpublished). Whether the MSPB
properly dismissed an action based on res judicata raises
a question of law that we review de novo. See Renville,
632 F. App’x at 613.
Mr. Jones argues that the MSPB misapplied the doc-
trine of res judicata. See Pet’r’s Br. 1–5. In particular,
Mr. Jones alleges that the MSPB failed to consider “nu-
merous . . . relevant facts” that allegedly did not exist
when he filed his first appeal with the MSPB. Id. at 1–2.
The facts discussed by Mr. Jones relate to evidence that
he purportedly proffered in other appeals challenging
HHS’s decision not to select him for various positions. See
id. Had the MSPB considered these facts, Mr. Jones
contends the MSPB would have found that “the underly-
ing cause of action is different” from his prior appeal. Id.
at 2 (emphasis omitted).
Mr. Jones’s argument suffers from two flaws. As an
initial matter, Mr. Jones fails to specify the relevant facts
that the MSPB failed to consider and otherwise does not
support his assertions with record evidence. See id. at 1–
5. In any event, evidence related to Mr. Jones’s non-
selection in other appeals does not change the circum-
stances surrounding the non-selection that gave rise to
the prior and subject appeals. Thus, the evidence dis-
cussed by Mr. Jones is irrelevant to our res judicata
analysis. See, e.g., Carson, 398 F.3d at 1375 (explaining
that a res judicata analysis focuses on the circumstances
present at the time a party brought its initial action).
Moreover, the MSPB correctly held that the doctrine
of res judicata bars Mr. Jones’s appeal because the subject
JONES v. HHS 5
appeal meets each of the factors articulated in Carson.
First, the MSPB had jurisdiction over Mr. Jones’s prior
appeal, in which he raised a VEOA claim. See 5 C.F.R.
§ 1201.3(b)(1) (providing the MSPB with jurisdiction over
VEOA appeals). Second, the MSPB issued a final decision
on the merits as to Mr. Jones’s prior appeal. See Jones v.
Dep’t of Health & Human Servs., No. DE-3330-10-0154-I-
2 (M.S.P.B. Mar. 22, 2011) (Resp’t’s App. 28–33) (final
decision); Jones v. Dep’t of Health & Human Servs., No.
DE-3330-10-0154-I-2 (M.S.P.B. Aug. 23, 2010) (Resp’t’s
App. 34–41) (initial decision). Third, although Mr. Jones
raises distinct legal theories in the prior and subject
appeals (i.e., VEOA and USERRA claims, respectively),
both appeals involve the same parties and the same
operative facts—namely, HHS’s decision not to hire him
for either of the 2009 job vacancies. Specifically, Mr.
Jones sued HHS in each appeal, Resp’t’s App. 26, 34, and
each appeal concerned the same 2009 job vacancy for
which Mr. Jones was not selected for employment, com-
pare id. at 26 (where in the subject appeal Mr. Jones
raised a USERRA claim related to announcement number
HHS-CDC-D3-2010-0011), with id. at 35 (where in the
prior appeal Mr. Jones raised a VEOA claim related to
announcement numbers HHS-CDC-D3-2010-0011 and
HHS-CDC-D3-2010-0012). Thus, the doctrine of res
judicata bars Mr. Jones’s appeal.
Mr. Jones also argues that the MSPB improperly de-
nied him a right to a hearing, “which is mandatory under
the USERRA.” Pet’r’s Br. 2. “[A]ny veteran who requests
a hearing” on a USERRA claim before the MSPB “shall
receive one.” Kirkendall v. Dep’t of the Army, 479 F.3d
830, 844 (Fed. Cir. 2007) (discussing 5 U.S.C. § 7701(a),
38 U.S.C. § 4324(c)(1)). However, “[t]he right to a hearing
for USERRA claims does not entail the right to relitigate
already resolved claims and to require the administrative
judge to conduct a hearing whenever such previously
6 JONES v. HHS
resolved claims are reasserted.” Baney v. Dep’t of Justice,
327 F. App’x 895, 900 (Fed. Cir. 2009) (unpublished).
CONCLUSION
We have considered Mr. Jones’s remaining arguments
and find them unpersuasive. Accordingly, the final deci-
sion of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.