NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3269 KELSEY L. HEBRON, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Kelsey L. Hebron , of Severn, Maryland, pro se. Kenneth S. Kessler , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Deborah A. Bynum , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3269 KELSEY L. HEBRON, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Petition for review of the Merit S ystems Protection B oard in DC0752080115-I-1.

___________________________ DECIDED: November 7, 2008

___________________________ Before BRYSON, PLAGER, and DYK, Circuit Judges

. PER CURIAM. DECISION Kelsey L. Hebron challenges the decision of the Merit Systems Protection Board dismissing his appeal as barred by res judicata. We affirm

. BACKGROUND On January 19, 2006, the Unit ed States Postal Service removed Mr. Hebron from his position as a mail handler, citing his chr onic absenteeism and his failure to comply with agency directives to return to duty and to attend a predisciplinary interview. Withrespect to Mr. Hebron’s unsatisfactory attendance, the agency found that he had been absent for 628 of the 800 available work hours between June 11, 2005, and November 13, 2005, and that he had been abs ent without leave for a total of 416 hours between August 18, 2005, and October 30, 2005. Mr. Hebron appealed the agency’s removal decision to the Merit Systems Protection Board. Before t he Board, he argued, inter alia , (1) that the agency had improperly denied him leave under the Family and Medical Leave Act of 1993 (“FMLA”), which, if granted, would have accounted for a significant number of the hours for which he had been charged as being absent without leave; and (2) that he was prejudiced by the agency’s failure to give him prompt notic e of the denial of FMLA leave and that he should be granted FMLA leave on account of the agency’s failure to give him prompt notice of the denial. At the hearing on his appeal, Mr. Hebron also advised the administrative judge that he had a pending applic ation to the Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”) for disability benefits covering the period between August 15, 2005, and September 30, 2005. The administrative judge found that t he agency had properly denied Mr. Hebron’s application for FMLA leave. The administrative judge noted that the Postal Service did not dispute that between A ugust 18, 2005, and October 30, 2005, Mr. Hebron suffered from “a serious health condition as defined by FMLA,” but concluded that he was not entitled to FMLA leave for that period bec ause he had not satisfied the service tenure requirement for entitlement to FMLA benefits. The adminis trative judge also rejected Mr. Hebron’s argument that the alleged failure by the agency to give him prompt notice of its decision not to grant him FMLA leave entitled him to FMLA leave for the period of

2008-3269 2his absence. The administrative judge expl ained that nothing in the FMLA statute “requires or permits an agency to award undes erved FMLA leave because it had failed to promptly deny it.” The administrative judge’s decision re jecting Mr. Hebron’s claims became final when, on November 17, 2006, t he Board rejected Mr. Hebron’s petition for review. Mr. Hebron sought judicial review in th is court on January 17, 2007, which was 61 days after he had been electronically serv ed with the Board’s final order. See Hebron v. United States Postal Serv. , 226 Fed. Appx. 994 (Fed. Cir. April 4, 2007). Because the petition for review was not filed within 60 days of receipt of the Board’s order, as required by 5 U.S.C. § 7703(b)(1), we dismissed the petition as untimely. By the time Mr. Hebron filed his 2007 petiti on for review by this court, the OWCP had granted his application for wo rker’s compensation benefits. In his petition, Mr. Hebron urged this court to c onsider the award as further evidence of his innocent explanation for his absences. In addition, Mr. Hebron continued to advance his claim that he had been prejudiced by the agency’s failure to communicate its decision concerning his FMLA status. According to Mr. Hebron, the agency had provided him with “FMLA call-in and confirmation number s,” and he had acted in reliance on the understanding that he was FMLA-eligible. He contended that if the agency had timely served him with notice of the deni al of FMLA leave, he would have filed an earlier claim for OWCP benefits and would have sought other forms of administrative leave to prevent the agency from designat ing him absent without leave. Seven months later, on November 12, 2007, Mr. Hebron filed another appeal with the Board, again chall enging his January 19, 2006, remo val from employment with

2008-3269 3the Postal Service. This time, Mr. Hebr on argued that “the records showed [he] had a FMLA balance and had used FMLA” and that t he Board had improperly “refused to acknowledge [the] OWCP case which was mentioned during the hearing.” Shortly thereafter, the administrative judge issued an order to show cause directing Mr. Hebron to show why his claims were not barred by pr inciples of res judicata. Mr. Hebron did not respond to that order. On January 17, 2008, the administrative judge dismissed the appeal, finding that the Board had previously adjudicated claims identical to those asserted in the second appeal. Mr. Hebron pet itioned for review bef ore the full Board, but the petition was denied. This petition followed. DISCUSSION Under the doctrine of res judicata, a fi nal judgment on the merits of an action precludes the parties or their privies from re litigating issues that were or could have been raised in that action. Allen v. McCurry , 449 U.S. 90, 94 (1980); see also Int’l Nutrition Co. v. Horphag Research, Ltd. , 220 F.3d 1325, 1328 (Fed. Cir. 2000) (“Application of res judicata requires a prio r final judgment on the merits by a . . . tribunal of competent jurisdiction; identity of the parties or thos e in privity with the parties; and a subsequent action based on the same claims that were raised, or could have been raised, in the prior action.”). We find no error in the Board’s conclusion that its November 17, 2006, decisi on bars Mr. Hebron from further litigation concerning his termination, particularly as it relates to t he relevance of his FMLA eligibility and the pendency of his OWCP claim. On the record before us, it is clear that the issues Mr. Hebr on sought to raise in his second appeal were squarely before the B oard in the first appeal, and that the

2008-3269 4second appeal recited the same grounds for appeal that were raised in the first, without attempting to distinguish the prior adjudication. The administrative judge ruled that the January 19, 2006, removal was lawful notwit hstanding Mr. Hebron’s arguments that he was entitled to FMLA leave for the entire per iod of his absence from work and his claim that his pending request for OWCP benefits would, if granted, provide a legally sufficient excuse for his absence. His second appeal s ought to relitigate the lawfulness of his removal, and on essentially the same grounds t hat were raised in the first appeal. The only differences between the two appeals are (1) following the first appeal, the OWCP granted benefits to Mr. Hebron for a portion of the period during which the Postal Service treated him as AWOL, and (2) in hi s petition for review in his second appeal, Mr. Hebron submitted documents fr om the Postal Service that he claims indicate that he was credited with FMLA leave for certain periods during which he was absent from work. Neither of those differences is sufficient to avoid the res ju dicata effect of the dismissal of his first appeal and to permit hi m to prosecute a new appeal raising the same objections to his removal that were litigated in the first appeal. In his reply brief in this court, Mr. H ebron argues that he filed his second appeal “under the grounds of new material evidence.” The proper procedure for raising a claim of new and material evidence in a Board pr oceeding is to move to reopen the initial appeal based on new and material evidence. See 5 C.F.R. § 1201.115(d)(1). In order to justify reopening the appeal, t he appellant must proffer new evidence, not available to the appellant at the time of t he initial appeal, that is of “sufficient weight to warrant an outcome different from that of the initial decision.” Wr ight v. U.S. Postal Serv. , 183 F.3d 1328, 1332 (Fed. Cir. 1999). By filing a second appeal, Mr. Hebron did not follow the

2008-3269 5prescribed procedure for raising a claim of new and material evidence and thus ran afoul of the principles of res judicata. To be sure, in his petition for review to the full Board Mr. Hebron cited the provisions of the Board’s regulations dealing with reopening appeals. Liberally read, that reference to the Boar d’s reopening regulations may indicate that Mr. Hebron’s petition for review was intended to serve in part as a request to reopen his first appeal. Even assuming that to be the case, however, Mr. Hebron’s submission of new evidence with his petition for review in his se cond appeal would not have been sufficient to require that his first appeal be reopened. At the time of the first appeal, the administrative judge was awar e of the pendency of his OWCP claim and did not treat the OWCP proceeding as constituting a valid defense to the agency’s case against him. As the administrative judge not ed in the first appeal, the Postal Service never disputed that Mr. Hebron had a serious health condi tion during the period for which he was subsequently granted OWCP benefits; for that reason, the subsequent OWCP action granting benefits for that period was not a significant new development in the case and therefore does not constitute “new and material evidence” that would be likely to result in a different decision in the case. In addition, his argument regarding his OWCP benefits does not excuse t he 168 hours of absence without leave that the Postal Service charged Mr. Hebron with during t he month of October 2005. And even assuming the Postal Service records he submi tted with his petition for review show that he was entitled to claim FMLA leave during the period of hi s absence, the amount of leave reflected in those records would have been exhausted during the period in which he received OWCP benefits and t herefore would not excuse his absence during other

2008-3269 62008-3269 7 periods between June and November 2005, including his 168 hours of absence during the month of October 2005. Mr. Hebron has thus fail ed to show that the new documents would have changed the outcome of hi s initial appeal. Accordingly, even if the Board had treated Mr. Hebron’ s petition for review in the second appeal as a motion to reopen his first appeal, he would not have sa tisfied the requirements for reopening. Finally, Mr. Hebron invokes cases involving the rights of injured employees to be restored to federal service upon their recove ry, and he argues that he is entitled to restoration in light of those cases. Although Mr. Hebron’s appeal was an appeal from his removal, not an appeal from the denial of restoration, he would not be entitled to relief even if the Board had treated his appeal as a restoration appeal. Restoration rights are available to employ ees who are removed as a result of a compensable injury and who recover from that injury within one year. See 5 C.F.R. § 353.301. Mr. Hebron was removed for absence from work for a period substantially in excess of the period for which he was accorded OWCP benefits. His for-cause removal was therefore lawful, and for that reason he is not ent itled to restoration rights following the end of the period for which he received OWCP benefits. See Minor v. Merit Sys. Prot. Bd. , 819 F.2d 280, 282 (Fed. Cir. 1987); Cox v. Merit Sys. Prot. Bd. , 817 F.2d 100, 101 (Fed. Cir. 1987); Wright v. U.S. Postal Serv. , 62 M.S.P.R. 122, 128-29 (1994). Because Mr. Hebron has not show n that his second appeal should have resulted in overturning his removal, even apart from the procedural defects in that appeal, we sustain the decision of the Board.