Case: 22-1262 Document: 21 Page: 1 Filed: 07/11/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROGER L. HAYNES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1262
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-3443-22-0009-I-1.
______________________
Decided: July 11, 2022
______________________
ROGER HAYNES, III, Topeka, KS, pro se.
ELIZABETH WARD FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before NEWMAN, LINN, and CHEN, Circuit Judges.
PER CURIAM.
Case: 22-1262 Document: 21 Page: 2 Filed: 07/11/2022
2 HAYNES v. MSPB
In 2021, Roger L. Haynes appealed to the Merit Sys-
tems Protection Board (Board) alleging error by the Rail-
road Retirement Board (RRB). The Board dismissed the
appeal for lack of jurisdiction. Specifically, it found that
Mr. Haynes filed a similar appeal in 2014, which the Board
dismissed for lack of jurisdiction, and that he was therefore
collaterally estopped from relitigating jurisdiction. Haynes
v. R.R. Ret. Bd., No. DE-3443-22-0009-I-1, 2021 WL
5080582 (M.S.P.B. Oct. 28, 2021) (2021 Board Decision)
(Appx. 1–12). 1 Based on the minimal details provided
about the nature of the present appeal, we disagree that
collateral estoppel applies here. We nonetheless affirm be-
cause Mr. Haynes did not show by a preponderance of the
evidence that the Board had jurisdiction over his appeal.
BACKGROUND
Mr. Haynes worked as a railroad employee for about
fifteen years, though never as a federal employee. 2021
Board Decision at 2. The RRB 2 found that Mr. Haynes was
totally and permanently disabled and awarded him a disa-
bility annuity. Id. Mr. Haynes later requested an increase
in the amount of that award. Id. The RRB denied the re-
quest as untimely. Id.
1 “Appx.” citations are to the appendix filed concur-
rently with the Board’s responsive brief. Additionally, be-
cause the reported versions of the Board’s decision are not
paginated, citations are to the version of the decision in-
cluded in the appendix. E.g., 2021 Board Decision at 1 can
be found at Appx. 1.
2 The RRB is a federal agency that administers the
system of disability, retirement, and survivor benefits for
railroad workers established by the Railroad Retirement
Act of 1974. See Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct.
691, 694 (2021).
Case: 22-1262 Document: 21 Page: 3 Filed: 07/11/2022
HAYNES v. MSPB 3
In 2014, Mr. Haynes appealed the RRB’s denial to the
Board. Id. In an initial decision, the administrative judge
assigned to the case concluded that the Board lacked juris-
diction over the appeal. Haynes v. R.R. Ret. Bd., No. DE-
3443-14-0186-I-1, 2014 WL 930417 (M.S.P.B. Mar. 7,
2014). Mr. Haynes petitioned for review by the full Board,
which affirmed the initial decision, concluding that Mr.
Haynes “failed to offer any law, rule, or regulation that pro-
vides for Board jurisdiction over appeals from the agency’s
decisions regarding [Railroad Retirement Act] retirement
benefits for private rail industry employees.” Haynes v.
R.R. Ret. Bd., No. DE-3443-14-0186-I-1, 2014 WL 5422569,
at *2 (M.S.P.B. Oct. 8, 2014) (2014 Board Decision). Mr.
Haynes did not appeal the 2014 Board decision.
In 2021, Mr. Haynes filed another appeal to the
Board—the one at issue here. Appx. 20–26. Mr. Haynes
again alleged error by the RRB, indicating he was appeal-
ing a “[f]ailure to restore/reemploy/reinstate or improper
restoration/reemployment/reinstatement.” Appx. 22. He
did not identify the date of the decision on appeal, instead
stating that his “paperwork was seized by [a] storage facil-
ity.” Id. In his description of agency error, he wrote that
the RRB was “wrong to close” the case because he “sent ad-
ditional evidence pertaining to [his Federal Employers’ Li-
ability Act] case against [Union Pacific] Railroad” and cited
multiple alleged improper acts by “the railroad.” Appx. 22.
He mentioned “disability annuity” only once, in response to
a question asking him to identify the “retirement system”
in which he was enrolled. Appx. 24.
The administrative judge issued an order “to show
cause why this appeal should not be dismissed for lack of
jurisdiction.” Appx. 16–18. Citing the 2014 appeal, the ad-
ministrative judge stated that “the instant petition for ap-
peal . . . appears to raise the same issues as in [the] prior
appeal” and that “it appears the jurisdictional defect that
resulted in the dismissal of the prior petition still remains.”
Appx. 16. The administrative judge also ordered Mr.
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4 HAYNES v. MSPB
Haynes “to show cause why he is not collaterally estopped
from relitigating his jurisdictional claims.” Appx. 18.
Mr. Haynes did not respond and the administrative
judge issued an initial decision dismissing the appeal for
lack of jurisdiction. 2021 Board Decision at 1, 4. After re-
citing the relevant history and Board precedent on collat-
eral estoppel, the administrative judge concluded that
“each element of collateral estoppel has been established.”
Id. at 4. In particular, the administrative judge relied on a
precedential Board opinion finding that an appellant “may
be collaterally estopped from establishing jurisdiction in a
second appeal based on the same underlying cause of ac-
tion.” Id. at 3 (citing Penna v. U.S. Postal Serv., 118
M.S.P.R. 355 ¶ 12 (2012)); see also id. at 4 (“While a dismis-
sal for lack of jurisdiction does not necessarily preclude a
second action on the same claim, the second claim will only
be viable if the prior jurisdictional defect is cured[.]”). Mr.
Haynes did not petition for review, and the initial decision
became the final decision of the Board. Id. at 4; Board In-
formal Br. 5.
Mr. Haynes appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
When reviewing Board decisions, we set aside agency
“action, findings, or conclusions” that are “(1) arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). The
Board’s subject matter jurisdiction is a question of law we
review de novo. Vesser v. Off. of Pers. Mgmt., 29 F.3d 600,
603 (Fed. Cir. 1994); Waldau v. Merit Sys. Prot. Bd., 19
F.3d 1395, 1398 (Fed. Cir. 1994). The subject matter juris-
diction of the MSPB is “limited to actions designated as ap-
pealable to the Board ‘under any law, rule, or regulation.’”
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir.
Case: 22-1262 Document: 21 Page: 5 Filed: 07/11/2022
HAYNES v. MSPB 5
1998) (quoting 5 U.S.C. § 7701(a)). We review any findings
of fact underlying the Board’s jurisdictional decision for
substantial evidence. Bledsoe v. Merit Sys. Prot. Bd., 659
F.3d 1097, 1101 (Fed. Cir. 2011).
I
We first address the Board’s conclusion that Mr.
Haynes was collaterally estopped from relitigating jurisdic-
tion. Given the record before us, because we cannot say
that Mr. Haynes’s 2014 and 2021 appeals involve the same
underlying cause of action, we conclude that the Board
erred in resting its decision on collateral estoppel.
Like other judicial and administrative tribunals, the
Board applies the doctrine of collateral estoppel to prevent
a party from relitigating an issue where: “(i) the issue pre-
viously adjudicated is identical with that now presented,
(ii) that issue was actually litigated in the prior case,
(iii) the previous determination of that issue was necessary
to the end-decision then made, and (iv) the party precluded
was fully represented in the prior action.” Morgan v. Dep’t
of Energy, 424 F.3d 1271, 1274–75 (Fed. Cir. 2005). Under
Board precedent, collateral estoppel can apply to questions
of jurisdiction “in a second appeal based on the same un-
derlying cause of action” when the jurisdictional defect in
the first appeal has not been cured. 2021 Board Decision
at 3 (citing Penna, 118 M.S.P.R. at ¶ 12); id. at 4 (citing
McNeil v. Dep’t of Def., 100 M.S.P.R. 146 ¶ 15 (2005)).
In this case, there is insufficient information about the
claim in the 2021 appeal to conclude that the two appeals
involve the same underlying cause of action. The 2014 ap-
peal related to the RRB’s denial of an untimely request to
reconsider a disability annuity award amount. 2014 Board
Decision at *1. The 2021 appeal does not mention that de-
nial and instead describes an alleged failure to consider
certain information regarding wrongdoing by Union Pacific
Railroad. Appx. 22.
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6 HAYNES v. MSPB
The administrative judge’s order to show cause stated
without elaboration that the 2021 appeal “appear[ed] to
raise the same issues as” the 2014 appeal. Appx. 16. The
initial decision, which became the Board’s final decision,
did not provide further analysis. The background section
merely noted that Mr. Haynes’s 2014 appeal argued “that
his disability retirement annuity should be reconsidered”
and that the 2021 appeal challenged “the agency’s ‘Failure
to restore/reemploy/reinstate or improper restora-
tion/reemployment/reinstatement’ and ‘Other action—
Aprentise [sic] lawyer at laws.’” 2021 Board Decision at
2–3. Absent any evidence or explanation supporting the
conclusion that Mr. Haynes’s 2021 appeal involves the
same underlying cause of action as his 2014 appeal, we can-
not uphold the Board’s collateral estoppel reasoning.
II
Although the Board incorrectly applied collateral es-
toppel, it correctly dismissed the appeal because Mr.
Haynes did not establish jurisdiction over the present ap-
peal.
The Board’s jurisdiction is not “plenary”; “rather, an
employee may submit an appeal to the Merit Systems Pro-
tection Board challenging only agency actions that are ap-
pealable to the Board under any law, rule, or regulation.”
Moulton-Miller v. Merit Sys. Prot. Bd., 985 F.3d 864, 869
(Fed. Cir. 2021) (citing 5 U.S.C. § 7701) (cleaned up). It is
the appellant’s burden to establish the Board’s jurisdiction
by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
Mr. Haynes did not meet this burden. In his 2021 ap-
peal, he did not identify a specific agency action that he
sought to correct; nor did he cite any “law, rule, or regula-
tion” that would give the Board jurisdiction over an appeal
of an RRB decision regarding the retirement annuity of a
private employee. Instead, he merely asserted that the
RRB—in an unspecified action—had wrongly “close[d] the
Case: 22-1262 Document: 21 Page: 7 Filed: 07/11/2022
HAYNES v. MSPB 7
information.” Appx. 22. Moreover, notwithstanding his
unsupported assertion in this court that he is “a federal
agent for the U.S. Railroad Retirement Board,” Haynes In-
formal Br. 3, the Board found that he was never employed
by the federal government, 2021 Board Decision at 2. That
alone indicates lack of jurisdiction because the Board’s ju-
risdiction is generally limited to issues arising from federal
employment. See 5 C.F.R. § 1201.3.
We therefore agree with the administrative judge’s
statement that, ultimately, “the same jurisdictional defect
that resulted in the dismissal of the prior appeal still re-
mains” and affirm on that ground. Appx. 16.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Merit Systems Protection Board dismissing Mr. Haynes’s
appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.