Rose v. Department of Defense
705 F. App'x 983
| Fed. Cir. | 2017Background
- Eric Rose, a former DOD Store Worker/Forklift Operator, was arrested and barred from his duty station after a supervisor allegedly provided false information; he was later removed for extended absence without leave.
- Rose filed multiple MSPB appeals: (1) challenged the barment as a constructive suspension (unsuccessful), (2) challenged his removal (resulted in reversal of removal after remands in Rose II), and (3) filed an IRA (whistleblower) appeal alleging retaliation by his supervisor leading to barment and removal.
- Rose’s IRA appeal was filed while his removal appeal was pending and after he filed a complaint with the Office of Special Counsel.
- The MSPB dismissed the IRA appeal, holding Rose’s whistleblower claim was barred by res judicata based on issues and operative facts already litigated in Rose II.
- The Federal Circuit affirmed, concluding (1) MSPB had jurisdiction over the prior actions, (2) prior decisions were final on the merits, and (3) the same parties and operative facts were involved, so res judicata applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB improperly applied res judicata to bar Rose’s IRA (whistleblower) claim | Rose: MSPB/AJ never reached merits of whistleblower claim and only addressed jurisdiction, so res judicata inapplicable | DOD/MSPB: Prior MSPB decisions involved same parties and operative facts; Rose could have raised whistleblower claim earlier | Held: Affirmed — res judicata bars Rose’s IRA claim because prior final decisions on same operative facts exist |
Key Cases Cited
- Carson v. Dep’t of Energy, 398 F.3d 1369 (Fed. Cir. 2005) (elements and scope of res judicata for related actions)
- Welshans v. U.S. Postal Serv., 550 F.3d 1100 (Fed. Cir. 2008) (MSPB legal determinations reviewed de novo)
- Ellis v. Amex Life Ins. Co., 211 F.3d 935 (5th Cir. 2000) (res judicata can apply when judgments are rendered during related litigation)
- Rose v. Dep’t of Def., 118 M.S.P.R. 302 (M.S.P.B. 2012) (previous MSPB decision addressing barment/constructive suspension)
- Renville v. Dep’t of Health & Human Servs., [citation="632 F. App'x 611"] (Fed. Cir. 2015) (res judicata limits claims that could have been raised in earlier action)
- Sabersky v. Dep’t of Justice, [citation="61 F. App'x 676"] (Fed. Cir. 2003) (party’s failure to raise defenses in earlier proceeding precludes later relitigation)