United States Court of Appeals
for the Federal Circuit
__________________________
KIMBERLY A. FORD-CLIFTON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3103
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case Nos. CH0752090381-C-1 and
CH0752090381-I-1.
___________________________
Decided: October 19, 2011
___________________________
KIMBERLY A. FORD-CLIFTON, of Chicago, Illinois, pro
se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director.
__________________________
FORD-CLIFTON v. VA 2
Before RADER, Chief Judge, O’MALLEY, and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Petitioner, Kimberly A. Ford-Clifton, seeks review of a
January 26, 2011 final determination of the Merit Sys-
tems Protection Board (“the Board”) that: (1) dismissed as
untimely her petition for review of the decision issued
March 26, 2009; and (2) affirmed the initial decision of the
administrative judge (“AJ”) dismissing her November 9,
2009 appeal. See Ford-Clifton v. Dep’t of Veterans Affairs,
MSPB Docket Nos. CH0752090381-C-1 and
CH0752090381-I-1 (Jan. 26, 2011). We affirm.
I. Background
On January 23, 2009, the Department of Veterans Af-
fairs (“DVA”) removed Petitioner from her position as a
Program Support Assistant in Chicago, Illinois. Peti-
tioner had previously been employed by the federal gov-
ernment for nearly thirty years, mostly with the DVA. In
a letter to the Board dated October 11, 2010, Petitioner
claimed that “stressful encounters with my department
began in May of 2008 and were ongoing until my dis-
charge in 2009.” A30.
During the period leading up to her removal, Peti-
tioner had documented mental and physical challenges.
Specifically, on August 12, 2008, she admitted herself to
the emergency room complaining of stress and feelings of
helplessness. She was discharged with a diagnosis of
depression and high blood pressure. Petitioner again
sought medical attention on September 5, 2008, and was
prescribed Effexor to treat her depression.
Following her removal from the DVA in early 2009,
Petitioner timely appealed. Shortly thereafter, on March
19, 2009, the parties entered into a settlement agreement
3 FORD-CLIFTON v. VA
(“the Agreement”) wherein the Petitioner agreed to volun-
tarily withdraw her appeal and forego all claims against
the DVA arising before that date. The Agreement sought
to fully resolve the matter, providing in pertinent part
that:
Appellant . . . will withdraw any actions Appellant
has pending against the DVA . . . and . . . waive
any and all actions, claims, complaints, griev-
ances, appeals and proceedings of whatever na-
ture in any forum, actual or potential, which
relate to or concern any conduct or act occurring
prior to the execution of this Agreement.
A7.
The parties notified the Board that they had settled.
The AJ found that the Agreement appeared lawful on its
face, was entered into freely by both parties, and repre-
sented a full and complete settlement of all issues. With
no matters remaining for adjudication, the AJ dismissed
the appeal as settled on March 26, 2009, entering the
Agreement into the record for enforcement purposes. The
AJ’s initial decision became final on April 30, 2009, as
clearly indicated:
This initial decision will become final on April 30,
2009, unless a petition for review is filed by that
date or the Board reopens the case on its own mo-
tion. This is an important date because it is usu-
ally the last day on which you can file a petition
for review with the Board. . . . These instructions
are important because if you wish to file a peti-
tion, you must file it within the proper time pe-
riod.
A17 (emphasis in original). No petition for review was
timely filed.
FORD-CLIFTON v. VA 4
On November 9, 2009, Petitioner filed a new appeal
seeking to be placed in her former position at the DVA.
The basis for this second appeal, however, was unclear.
The appeal was docketed as a petition to enforce the
Agreement, but Petitioner did not allege that the DVA
failed to comply with its terms. Instead, the new appeal
reargued the merits of the removal.
On March 19, 2010, the AJ issued an initial decision
dismissing the appeal on three grounds: (1) if the new
appeal was intended to enforce the Agreement, then
dismissal without prejudice was appropriate because
Petitioner did not claim that the DVA was not in compli-
ance; (2) if the new appeal was to relitigate the merits of
the removal itself, then dismissal was appropriate be-
cause the Petitioner’s subsequent claims were barred
under principles of res judicata given the express resolu-
tion of all issues by the Agreement and the entry of final
judgment; and (3) if the appeal was claiming that the
Agreement was illegal or improperly entered, those alle-
gations should have been filed at the Board’s headquar-
ters as a petition for review. 1
On April 17, 2010, Petitioner filed a petition for re-
view with the Board headquarters, indicating the docket
number and finality date of the AJ’s recent dismissal. As
a petition to review the March 19, 2010 dismissal, the
request was timely. But the Clerk of the Board deemed
that the April 17, 2010 filing could also be construed as a
petition for review of the original March 26, 2009 decision
that dismissed the case in the first instance, making the
filing almost a year late. The Clerk of the Board re-
1 In a footnote addressing the final point, the
AJ indicated that because it was unclear whether Peti-
tioner intended the appeal to be a petition for review, he
did not refer it to the Board headquarters for considera-
tion. A24 n4.
5 FORD-CLIFTON v. VA
quested additional materials from Petitioner to support a
showing of good cause for her untimely filing. Petitioner
subsequently filed a motion to waive the time limit,
attaching supporting documentation.
The Board, unable to determine the basis for the April
17, 2010 petition, ruled against Petitioner as to both
possibilities. See Ford-Clifton v. Dep’t of Veterans Affairs,
MSPB Docket Nos. CH0752090381-C-1 and
CH0752090381-I-1, at 1-2 (Jan. 26, 2011).
First, the Board found that “[t]o the extent the appel-
lant means to challenge the March 26, 2009 initial deci-
sion, we dismiss her petition for review as untimely filed
without a showing of good cause for the delay in filing.”
Id. at 2. At over eleven months, the Board found that the
period of filing delay in this case was “significant.” Id. at
5. To establish that such a significant delay was the
result of illness, Petitioner submitted evidence of her
hospital visits for depression in August and September of
2008, as well as documentation suggesting that she took
Coumadin to treat deep vein thrombosis as late as No-
vember of 2009. Assessing this medical evidence, the
Board determined that Petitioner’s 2008 depression
treatment pre-dated the relevant period of delay and did
not support a showing of good cause. As the Board ex-
plained: “Absent from the record . . . is any evidence that
the appellant suffered from depression during the period
between the issuance of the initial decision on March 26,
2009, and the filing of the petition for review . . . .” Id. at
6. As for her Coumadin therapy for blood clots which
occurred during the relevant timeframe, the Board found
that Petitioner “ha[d] not explained how that medical
condition would have impaired her ability to file a timely
petition for review or request an extension of the time to
file.” Id. The Board also considered, but rejected, Peti-
tioner’s claim that financial hardship and pro se status
FORD-CLIFTON v. VA 6
justified the delay. Id. As such, the Board found that
Petitioner failed to show good cause for the lengthy filing
delay and dismissed the new appeal to the extent it
sought untimely review of the March 26, 2009 initial
decision. Id. at 6-7.
Second, the Board determined that “[i]nsofar as the
appellant is petitioning for review of the March 19, 2010
initial decision, . . . we conclude that there is no new,
previously unavailable, evidence and that the administra-
tive judge made no error in law or regulation that affects
the outcome.” Id. at 7. Accordingly, the Board denied the
petition for review, but reopened the appeal on its own
initiative to clarify the grounds for its holding. The Board
decided that the AJ improperly identified res judicata as
the basis for the March 19, 2010 dismissal of Petitioner’s
second appeal. The Board stated that, “[w]hen the merits
of an agency action are not examined . . . the doctrine of
res judicata is inapplicable.” Id. The Board held instead
that “the law of the case doctrine” prevented the appellant
from relitigating her original removal claim, which was
fully resolved by the Agreement. Id. at 8. Hence, the
Board affirmed the dismissal of March 19, 2010, but on
the basis of the law of the case doctrine. Id. at 7-8.
Petitioner timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
II. Discussion
Because the Board dismissed on two separate
grounds, we address each in turn. We affirm a decision of
the Board unless it is found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c).
7 FORD-CLIFTON v. VA
A. Good Cause Was Not Shown
To demonstrate on appeal that the Board abused its
discretion in not waiving the filing deadline for a petition
for review, Petitioner bears a “heavy burden.” Zamot v.
Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).
The Board is afforded considerable discretion in such
analyses. Id.; Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc) (“[W]hether the regu-
latory time limit for an appeal should be waived based
upon a showing of good cause is a matter committed to
the Board’s discretion and this court will not substitute
its own judgment for that of the Board.”).
Board regulations require petitioners to file “[a] spe-
cific and detailed description of the circumstances causing
the late filing, accompanied by supporting documentation
or other evidence.” 5 C.F.R. § 1201.114(f)(2). The Board
has held that when petitioners allege delay for medical
reasons, they must affirmatively identify medical evi-
dence that addresses the entire period of delay and ex-
plain how the illness prevented a timely filing. Jerusalem
v. Dep’t of the Air Force, 107 M.S.P.R. 660, 663, aff’d, 280
F. App’x 973 (Fed. Cir. 2008); see also Lacy v. Dep’t of the
Navy, 78 M.S.P.R. 434, 437 (1998).
The Board’s determination that Petitioner’s medical
evidence failed to show good cause based on illness was
reasonable and supported by substantial evidence. Peti-
tioner contends that the delay was the result of depres-
sion and deep vein thrombosis, but did not provide
evidence of a medical condition that prevented a timely
filing between April 30, 2009 and April 17, 2010—the
entire period of delay. The record evidence describing
Petitioner’s depression is limited to episodes occurring in
mid-2008, many months prior to the relevant period. The
only medical evidence actually dated from within the
FORD-CLIFTON v. VA 8
period of delay was for deep vein thrombosis; but, as the
Board properly found, there is no accompanying explana-
tion of how this condition prevented a timely filing.
Nor did the Board err in rejecting the other non-
medical excuses raised. Relying upon established prece-
dent, the Board properly held that neither alleged finan-
cial hardship nor inability to engage counsel establish
good cause for delay. See Uson v. Office of Pers. Mgmt.,
105 M.S.P.R. 402, 403, aff’d, 250 F. App’x 326 (Fed. Cir.
2007); Melville v. Dep’t of the Air Force, 99 M.S.P.R. 233,
234 (2005). We therefore affirm the Board’s determina-
tion that good cause was not shown to excuse Petitioner’s
filing delay of more than eleven months.
B. The Agreement Requires Dismissal
The Board found error in applying res judicata to
dismiss Petitioner’s November 9, 2009 appeal because the
AJ had not examined the underlying merits of the DVA
removal in his prior decision. Rather, the Board held that
the legal doctrine preventing Petitioner’s new appeal was
“the law of the case doctrine.” Under this doctrine,
“[i]ssues decided at an earlier stage of litigation, either
explicitly or by necessary inference from the disposition,
constitute the law of the case.” Kori Corp. v. Wilco Marsh
Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir.
1985) (citation omitted). The Board dismissed Petitioner’s
second appeal based on this doctrine, relying on the terms
of the Agreement.
We affirm the Board’s final decision dismissing the
November 9, 2009 appeal, but we find that the law of the
case doctrine is not the correct analysis to employ here.
The Board has sometimes refused to apply res judicata
where a prior dispute was dismissed pursuant to settle-
ment agreement, maintaining that such resolutions do
not reach the merits and cannot have preclusive effect.
9 FORD-CLIFTON v. VA
See Vargo v. USPS, 62 M.S.P.R. 156, 159 (1994). The
Board has relied instead on the law of the case doctrine to
prevent relitigation of settled matters. Id. As explained
below, we look with disfavor on the use of the law of the
case doctrine by administrative agencies when a final
order dismissing a case was earlier made on the basis of a
settlement agreement. 2 In such circumstances, a subse-
quent appeal is barred by res judicata.
Pursuant to the doctrine of res judicata, a final judg-
ment on the merits bars a second action involving the
same parties and the same claim. See Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Carson v. Dep’t
of Energy, 398 F.3d 1369, 1374-75 (Fed. Cir. 2005); see
also Wade v. Dep’t of the Air Force, 70 M.S.P.R. 396, 399
(1996), aff’d, 104 F.3d 375 (Fed. Cir. 1996). It is widely
agreed that an earlier dismissal based on a settlement
agreement constitutes a final judgment on the merits in a
res judicata analysis. See Epic Metals Corp. v. H.H.
Robertson Co., 870 F.2d 1574, 1576 (Fed. Cir. 1989), cert.
2 Some appellate courts have questioned
whether the law of the case doctrine is available to agen-
cies at all. See, e.g., Biltmore Forest Broad. FM, Inc. v.
Fed. Commc’ns Comm’n, 321 F.3d 155, 163 (D.C. Cir.
2003) (“For the record, we note also that the law of the
case doctrine is of uncertain force in the context of admin-
istrative litigation.”); Lockert v. Dep’t of Labor, 867 F.2d
513, 518 (9th Cir. 1989) (“[I]t is doubtful that federal
courts have the authority to extend the law of the case
doctrine to proceedings involving non-judicial decision-
makers, such as the ALJ and the Secretary. Law of the
case doctrine is purely judge made; in the absence of
statutory guidance, it makes sense for judges to develop
doctrines to help manage efficiently their own affairs.
The basis for extending this doctrine beyond ‘judicial
affairs,’ however, is far from certain.”); see also Bath Iron
Works v. Brown, 194 F.3d 1, 4 n.3 (1st Cir. 1999) (citing
Lockert, 867 F.2d at 517-18).
FORD-CLIFTON v. VA 10
denied, 493 U.S. 855 (1989) (construing Third Circuit law
and stating that under “principles of res judicata . . .
consent judgments have the same force and effect as
judgments entered after a trial on the merits”); see also
Larken, Inc. v. Wray, 189 F.3d 729, 732 (8th Cir. 1999)
(“When the parties to a previous lawsuit agree to dismiss
a claim with prejudice, such a dismissal constitutes a
‘final judgment on the merits’ for purposes of res judi-
cata.”); Chase Manhattan Bank, N.A. v. Celotex Corp., 56
F.3d 343, 345 (2d Cir. 1995) (“A voluntary dismissal with
prejudice is an adjudication on the merits for purposes of
res judicata.”); Langton v. Hogan, 71 F.3d 930, 935 (1st
Cir. 1995) (“A judgment that is entered with prejudice
under the terms of a settlement, whether by stipulated
dismissal, a consent judgment, or a confession of judg-
ment, is not subject to collateral attack by a party or a
person in privity, and it bars a second suit on the same
claim or cause of action.”). For res judicata purposes,
therefore, consent judgments entered pursuant to settle-
ment agreements have the same effect as judgments after
a trial on the merits. Hallco Mfg. Co. v. Foster, 256 F.3d
1290, 1294-95 (Fed. Cir. 2001); see also Pactiv Corp. v.
Dow Chem. Co., 449 F.3d 1227, 1230 (Fed. Cir. 2006) (“A
dismissal with prejudice is a judgment on the merits for
purposes of claim preclusion.”).
The record establishes that the Agreement was lawful
and “a full and complete settlement of all issues in the
appeal.” A17. The AJ entered it into the record, dismiss-
ing the case on March 26, 2009. That decision became
final April 30, 2009. Upon Petitioner’s subsequent ap-
peal, the AJ confronted the same parties and the same
claims as in the original suit, namely, Ms. Ford-Clifton
challenging her January 23, 2009 removal by the DVA.
Since the AJ’s earlier dismissal based on the Agreement
resolved all issues regarding Petitioner’s removal, that
11 FORD-CLIFTON v. VA
decision is a final judgment on the merits for res judicata
purposes. Hallco, 256 F.3d at 1294-95. The AJ thus
properly found the second appeal barred by res judicata,
and dismissal was appropriate on that ground. See Sulli-
van v. Dep’t of Justice, 282 F. App’x 828, 830 (Fed. Cir.
2008) (affirming dismissal on res judicata grounds be-
cause the “petition arose from the same event Mr. Sulli-
van previously challenged and eventually settled . . . .”);
cf. Fletcher v. USPS, No. SF-0353-08-0383-I-1, 2008
MSPB LEXIS 3404, at *4, rev. denied, 110 M.S.P.R. 151
(2008) (“It is well-settled that, where a party requests a
voluntary dismissal of his appeal with an affirmative
expression of the intent to abandon the appeal, the dis-
missal will be considered to be ‘with prejudice.’ Under
such circumstances, the dismissal is considered final, and
relitigation of such appeal is barred by res judicata.”).
We also believe that the AJ’s dismissal, in addition to
res judicata, could be characterized in terms of waiver.
See Mannion v. Dep’t of Treasury, No. 2011-3089, 2011
U.S. App. LEXIS 14215, at *2-6 (Fed. Cir. July 11, 2011)
(affirming the Board’s decision that the petitioner could
not reinstate or reopen her appeal because she entered
into a settlement agreement wherein she voluntarily
waived “any and all rights to file, pursue or litigate in any
forum, including . . . the MSPB . . . any and all” of her
claims). By the Agreement’s express terms, Petitioner
withdrew any pending action and waived all additional
claims, grievances, and proceedings arising from her DVA
removal. Since the March 26, 2009 decision was based on
the Agreement, which fully and completely resolved this
matter, we affirm the Board’s determination on this
ground as well.
FORD-CLIFTON v. VA 12
III. Conclusion
Because Petitioner failed to show good cause for her
untimely filing of the November 9, 2009 appeal and
because the March 26, 2009 decision implementing the
Agreement operates as a res judicata bar, we affirm.
AFFIRMED
COSTS
No costs.