Eic Rose v. Department of Defense
Background
- Appellant Eric Rose, a Defense Commissary Agency store worker, was arrested and barred from his duty station (a Navy base) after his store director allegedly gave false information to base security about threats.
- Rose previously appealed to the MSPB claiming a constructive suspension and later a removal (effective Oct. 21, 2011); the Board reversed the removal on due-process grounds after remands but declined to address a whistleblower claim raised late.
- Rose then filed an IRA (individual right of action) whistleblower appeal, alleging the store director retaliated by providing false information to base security and recommending continued barment.
- The administrative judge ordered Rose to show cause why the IRA appeal should not be dismissed under res judicata, then dismissed the IRA appeal, finding Rose had exhausted OSC only on the constructive suspension and removal already adjudicated.
- The Board denied Rose’s petition for review, holding the IRA claim was precluded by res judicata and, alternatively, that the alleged statements/opinions by the store director were not ‘‘personnel actions’’ under the pre‑2013 definition and thus not within Board jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rose’s IRA appeal is barred by res judicata | Rose contends the IRA challenges different actions (store director’s false report and opinion to the commanding officer) and thus are not the same claims previously litigated | Agency argues Rose exhausted OSC only for the constructive suspension/removal that were previously adjudicated, so claim preclusion applies | Held: Res judicata bars the IRA appeal because the OSC complaint and prior Board litigation encompassed the same personnel actions and parties |
| Whether Rose properly exhausted OSC for the IRA claims | Rose asserts OSC closure and his filings support exhaustion of the retaliatory-report theory | Agency points to Rose’s OSC form identifying only "retaliatory constructive suspension followed by removal" and the OSC closeout letter | Held: Rose did not exhaust OSC for separate claims; OSC filings reference only the suspension/removal |
| Whether the store director’s false report/opinion constitute ‘‘personnel actions’’ under 5 U.S.C. § 2302(a) (pre‑WPEA) | Rose argues the report and recommendation to keep him barred were retaliatory personnel actions supporting an IRA claim | Agency argues those acts are not listed personnel actions and therefore not within IRA jurisdiction | Held: Not personnel actions under the pre‑2013 statutory definition; Board lacks jurisdiction over those allegations alone |
| Whether prior Board rulings precluded reconsideration of retaliation theory in the removal appeal | Rose argues the IRA raises distinct retaliatory acts not addressed below | Agency notes Board considered and rejected retaliation as proximate cause in the removal proceedings | Held: The record shows the Board previously considered the Store Director’s role and found it not a proximate cause; Rose could have raised these arguments previously, so claim preclusion applies |
Key Cases Cited
- Carson v. Department of Energy, 398 F.3d 1369 (Fed. Cir. 2005) (articulates claim‑preclusion elements)
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (elements for IRA jurisdiction under whistleblower statutes)
- Sabersky v. Department of Justice, 91 M.S.P.R. 210 (2002) (preclusion of IRA when issues could have been raised earlier)
- Davis v. U.S. Postal Service, 119 M.S.P.R. 22 (2012) (res judicata and claim‑preclusion principles in MSPB context)
- Peartree v. U.S. Postal Service, 66 M.S.P.R. 332 (1995) (res judicata requirements: jurisdiction, finality, same cause/parties)
- Ward v. Merit Systems Protection Board, 981 F.2d 521 (Fed. Cir. 1992) (scope of exhaustion before OSC)