UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD 88 M.S.P.R. 356 DENNIS J. MARTINEZ, DOCKET NUMBER SF-0353-00-0476-I-1 Appellant, v. UNITED STATES POSTAL SERVICE, DATE: April 25, 2001 Agency. Dennis J. Martinez, Sacramento, California, pro se. Steven L. Jawgiel, Esquire, San Francisco, California, for the agency.
BEFORE Beth S. Slavet, Chairman Barbara J. Sapin, Vice Chairman Susanne T. Marshall, Member OPINION AND ORDER ¶1 The appellant has filed a timely petition for review of the initial decision that dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we find that the petition does not meet the criteria for review set forth at 5 C.F.R. § 1201.115, and we therefore DENY it. We REOPEN this case on our own motion under 5 C.F.R. § 1201.118, however, VACATE the initial decision, FIND that the Board has jurisdiction over this appeal, and DISMISS the appeal as barred by the doctrine of res judicata.
BACKGROUND
¶2 The appellant is a preference eligible PS-5 City Carrier at the Sacramento, California Post Office, Perkins Branch. He previously filed a petition for appeal in which he asserted that the agency constructively suspended him and denied him priority consideration for restoration to duty after he partially recovered from a compensable injury. The administrative judge found that the agency constructively suspended the appellant from August 15 through September 15, 1998, and for at least four weeks between December 3, 1998, and January 27, 1999, and reversed the suspensions because the agency had failed to afford the appellant minimum due process. He found, however, that the appellant failed to show that the agency discriminated against him on the basis of disability in either of the constructive suspensions. He further found that the appellant failed to prove that the agency constructively suspended him after January 27, 1999, or that the agency violated his right to restoration to duty after partial recovery from a compensable injury. Martinez v. U.S. Postal Service , MSPB Docket No. SF- 0752-99-0511-I-1 (Oct. 25, 1999). The initial decision became final when neither party filed a petition for review.
¶3 On May 26, 2000, the appellant filed an appeal alleging that he had been placed off work on mandated leave beginning January 28, 1999, and that he was denied restoration to work in violation of 5 C.F.R. Part 353. Initial Appeal File (IAF), Tab 1. The agency moved to dismiss the appeal, asserting, inter alia, that the Board had already adjudicated the issue. IAF, Tab 5. The administrative judge ordered the appellant to show cause, by July 14, 2000, why his appeal should not be dismissed as previously adjudicated. IAF, Tab 6. After considering the appellant’s submissions, the administrative judge dismissed the appellant’s appeal for lack of jurisdiction. Initial Decision at 1-4.
ANALYSIS
¶4 The appellant’s petition for review does not meet the criteria for Board review because it does not identify any specific error in the initial decision or any new and material evidence. 5 C.F.R. § 1201.115. We reopen this case, however, because the administrative judge erred in dismissing the appellant’s appeal for lack of jurisdiction. See, e.g., Tarrant v. Department of Transportation , 87 M.S.P.R. 308, ¶ 4 (2000) (the Board may reopen a case on its own motion to correct its own errors or to modify its judgment, decree, or order).
¶5 Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties or their privies based on the same cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995). Here, as explained above, the appellant has already received a final judgment from the Board on the merits of his claim that the agency constructively suspended him after January 27, 1999, and violated his restoration rights. Therefore, the appellant’s current attempt to relitigate the merits of the appeal is barred by res judicata.
¶6 The Board has held that the doctrine of res judicata is not a basis to dismiss an appeal for lack of jurisdiction, but rather a basis to dismiss an appeal over which the Board has jurisdiction. See, e.g., Perdue v. Department of Transportation , MSPB Docket No. DA-0752-98-0086-I-1, slip op. ¶ 8 (Feb. 7, 2001); Hicks v. U.S. Postal Service , 83 M.S.P.R. 599, ¶ 12 (1999). Accordingly, we DISMISS this appeal as barred by the doctrine of res judicata. [*]
ORDER
¶7 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address:
United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439
The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read this law as well as review other related material at our web site, http://www.mspb.gov. FOR THE BOARD: ______________________________
Robert E. Taylor Clerk of the Board
Washington, D.C.
NOTES
[*] To the extent that the appellant has asserted that the agency has not complied with the Board’s previous final decision, we note that that matter is now before the Board in the appellant’s compliance case. Martinez v. U.S. Postal Service , MSPB Docket No. SF- 0752-99-0511-X-1. The appellant’s assertions will be properly addressed in the Board’s decision in that case.