Bishop v. Department of Homeland Security
697 F. App'x 1025
| Fed. Cir. | 2017Background
- Paul J. Bishop was employed as an Agriculture Specialist at DHS (Customs and Border Protection) under a two-year Federal Career Intern Program appointment (Aug 2005–Aug 2007) and was terminated at the end of the term for unsatisfactory performance.
- Bishop filed an IRA (whistleblower) appeal with the MSPB in 2009 alleging his discharge was retaliation for protected disclosures; an administrative judge found he made protected disclosures but DHS proved by clear and convincing evidence it would have terminated him regardless, and the Board denied review (final 2010 decision).
- Bishop appealed to this court in 2011 but the appeal was dismissed for failure to prosecute.
- Bishop filed a second MSPB IRA appeal in 2015 raising the same termination; the MSPB issued a show-cause and dismissed the appeal under res judicata, concluding the 2010 MSPB decision was a valid final decision and the Board had jurisdiction over the IRA claim.
- Bishop filed a third IRA appeal in 2017 repeating the same claim; the MSPB again dismissed it as barred by res judicata. Bishop appealed to this court.
- The Federal Circuit affirmed the MSPB: res judicata bars Bishop’s repeated relitigation because a forum with competent jurisdiction issued a final decision on the merits involving the same cause of action and parties; new arguments raised for the first time on appeal were rejected as unpreserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior MSPB decision is entitled to res judicata effect | Bishop: MSPB lacked jurisdiction over his original IRA appeal, so prior decision is not a valid final judgment | DHS/MSPB: MSPB had jurisdiction over IRA claims alleging whistleblower retaliation, so the 2010 decision is a valid final decision | Held: MSPB had jurisdiction over the IRA; res judicata applies — appeal barred |
| Whether Bishop may relitigate same whistleblower claim | Bishop: renewed appeals challenge jurisdiction and thus evade preclusion | DHS: repeated filings are barred by res judicata to prevent vexatious relitigation | Held: Relitigation barred; doctrine protects against repeated litigation |
| Whether new due process claim (improper notice of poor performance) is reviewable | Bishop: for the first time on appeal contends he lacked proper notice of unsatisfactory performance | DHS/MSPB: issue was not raised below; thus not preserved | Held: Claim not preserved; arguments raised first on appeal rejected |
| Whether any other newly raised arguments should be considered | Bishop: asserted other arguments on appeal | DHS/MSPB: procedural rules bar new arguments not presented to MSPB | Held: Court rejects arguments raised for first time on appeal as procedurally improper |
Key Cases Cited
- Carson v. Dep’t of Energy, 398 F.3d 1369 (Fed. Cir. 2005) (describing purposes and application of res judicata)
- Allen v. McCurry, 449 U.S. 90 (1980) (res judicata prevents inconsistent decisions and vexatious relitigation)
- Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (MSPB jurisdiction over IRA appeals requires exhaustion and non-frivolous allegations of protected disclosure and contributing factor)
- Kachanis v. Dep’t of Treasury, 212 F.3d 1289 (Fed. Cir. 2000) (issues not raised before the Board may not be raised for first time on appeal)