UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES FRANCIS FITZPATRICK,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

NY-1221-19-0126-W-1

DATE: May 29, 2024

THIS ORDER IS NONPRECEDENTIAL1

Neal Rosenberg, Esquire, New York, New York, for the appellant.

Daniel Piccaluga, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal, finding that it was barred

by the doctrine of res judicata. For the reasons discussed below, we GRANT the

appellant’s petition for review, VACATE the initial decision, and REMAND this

appeal to the New York Field Office for jurisdictional notice and an opportunity

to provide evidence and argument on the issue of Board jurisdiction. 

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND

The appellant began his term appointment with the agency as a General

Schedule, grade 7, Miscellaneous Assistant on July 22, 2018. 1 Fitzpatrick v.

Department of Homeland Security, MSPB Docket No. NY-1221-19-0126-W-1,

Initial Appeal File (0126 IAF), Tab 17 at 36-38. The appellant’s term

appointment was subject to the satisfactory completion of a 1-year probationary

period. Id. at 36. Effective October 13, 2018, the agency terminated the

appellant during his probationary period for post-appointment reasons related to

his conduct and work performance. Id. at 17-22. 

On October 21, 2018, the appellant filed an appeal with the Board

contesting his probationary termination. Fitzpatrick v. Department of Homeland

Security, MSPB Docket No. NY-315H-19-0019-I-1 (Fitzpatrick I). The appellant

withdrew his appeal, and the administrative judge subsequently dismissed

Fitzpatrick I with prejudice. Fitzpatrick I, Initial Decision at 1-3 (Nov. 14,

2018). The appellant then filed a petition for review with the Board in

Fitzpatrick I. The Board issued a final order affirming the initial decision in

Fitzpatrick I that dismissed the appeal as withdrawn. Fitzpatrick I, Final Order

at 1-3 (Feb. 20, 2024). 

Subsequent to Fitzpatrick I being dismissed by the administrative judge,

the appellant filed an IRA appeal with the Board, alleging that in reprisal for

being a whistleblower, the agency terminated him during his probationary period.

Fitzpatrick v. Department of Homeland Security, MSPB Docket No. NY-1221-19-

0098-W-1 (Fitzpatrick II). The administrative judge dismissed Fitzpatrick II,

finding that the appeal was barred by res judicata based on the initial decision in

Fitzpatrick I that dismissed with prejudice the appellant’s Board appeal of his

probationary termination. Fitzpatrick II, Initial Decision at 1-5 (Apr. 4, 2019).

1

 The appellant’s position title is referred to as a Sighted Assistant in some documents,

but a Standard Form 50 in the record and his termination letter refer to the position as a

Miscellaneous Assistant. Fitzpatrick v. Department of Homeland Security, MSPB

Docket No. NY-1221-19-0126-W-1, Initial Appeal File, Tab 17 at 17, 36, 48.

2
The administrative judge further held that notwithstanding her finding that the

appeal was barred by res judicata, the appellant failed to satisfy his burden of

proving that he exhausted administrative remedies with the Office of Special

Counsel (OSC) before pursuing his IRA appeal in Fitzpatrick II. Id. at 3-4. The

appellant then filed a petition for review in Fitzpatrick II. The Board issued a

final order in Fitzpatrick II, vacating the portion of the initial decision barring the

appeal on res judicata grounds, and dismissing the appeal for lack of Board

jurisdiction because the appellant failed to prove that he exhausted administrative

remedies with OSC. Fitzpatrick II, Final Order at 1-7 (May 24, 2024). 

During the pendency of his petitions for review in Fitzpatrick I and II, the

appellant filed this IRA appeal with the Board, again alleging that his

probationary termination was taken by the agency in reprisal for him being a

whistleblower. 0126 IAF, Tab 1, Tab 7 at 4 (pleading filed by the appellant

clarifying that he seeks the Board to rule on the “whistleblowing aspect” through

this appeal). The administrative judge advised the appellant that this appeal

appeared to be barred by the doctrine of res judicata, and provided him with the

opportunity to demonstrate why his appeal should be permitted to move forward.

0126 IAF, Tab 15. After the appellant responded, the administrative judge issued

an initial decision, dismissing this appeal based on res judicata. 0126 IAF,

Tabs 17-18, Tab 19, Initial Decision (ID) at 1-5. The appellant then filed a

petition for review, to which the agency filed a response and the appellant filed a

reply.2 Petition for Review (PFR) File, Tabs 1, 7, 8.

2

 Subsequent to the filing of his petition for review in this case, the appellant filed a

motion with the Board seeking permission to file an additional pleading. Petition for

Review (PFR) File, Tab 4. At this stage of adjudication, the Board’s regulations

generally do not provide for pleadings beyond a petition for review, a cross petition for

review, a response to a petition or cross petition for review, and a reply to a response to

a petition for review. 5 C.F.R. § 1201.114(a)(5). For the Board to consider an

additional pleading, the party must seek leave and describe the nature of and need for it.

Id. We DENY the appellant’s motion, as he did not outline his need to file another

pleading, nor did he describe the pleading’s anticipated content or relevance. PFR File,

Tab 4. 

3
ANALYSIS

The doctrine of res judicata prevents repetitious litigation, as it precludes

parties from relitigating claims that were, or could have been, raised in prior

actions. Hooker v. Department of Veterans Affairs, 122 M.S.P.R. 551, ¶ 10

(2015). Res judicata applies when (1) the prior judgment was rendered by a

forum with competent jurisdiction, (2) the prior judgment was final and on the

merits, and (3) the same cause of action and the same parties or their privies were

involved in both cases. Id. 

The record in this IRA appeal is not sufficiently developed to determine

whether it is barred by res judicata. The doctrine of res judicata serves as a basis

to dismiss an appeal over which the Board has jurisdiction. Merzweiler v. Office

of Personnel Management, 100 M.S.P.R. 442, ¶ 7 (2005). Yet, when Board

jurisdiction over an appeal is lacking, this doctrine generally will not serve as

appropriate grounds for dismissal. Id. Rather, the appeal should be dismissed for

lack of jurisdiction. Id., ¶¶ 1, 8. For the reasons outlined herein, the question of

whether the Board has jurisdiction over this IRA appeal is an unresolved issue;

and until this issue is resolved, it is not appropriate to apply res judicata to this

appeal. Accordingly, we vacate the initial decision’s conclusion that this appeal

is barred by res judicata. 

Both the U.S. Court of Appeals for the Federal Circuit and the Board have

repeatedly held that an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue. Burgess v. Merit Systems

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Smyth v. Department of

the Interior, 85 M.S.P.R. 552, ¶ 5 (2000). To establish Board jurisdiction over an

IRA appeal, an appellant must prove that he exhausted his administrative

remedies before OSC and make nonfrivolous allegations that (1) he made a

whistleblowing disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),

and (2) the whistleblowing disclosure or protected activity was a contributing

4
factor in the agency’s decision to take or fail to take a personnel action outlined

in 5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs, 123 M.S.P.R.

434, ¶ 12 (2016).

In this instant case, however, the administrative judge did not notify the

appellant of this jurisdictional requirement, nor did she provide him with an

opportunity to prove that he satisfied such a requirement. Although the

administrative judge issued an order to show cause regarding res judicata, it did

not contain any notice of the Board’s jurisdictional requirements in an IRA

appeal. 0126 IAF, Tab 15. The administrative judge’s error was not cured by the

agency’s submissions or the initial decision. Milam v. Department of Agriculture,

99 M.S.P.R. 485, ¶ 10 (2005). Thus, we remand this appeal to provide the

appellant with notice of his jurisdictional burden in an IRA appeal and an

opportunity to establish jurisdiction. See Roach v. Department of the Army,

86 M.S.P.R. 4, ¶¶ 14-15, 19 (2000) (remanding an IRA appeal because the

administrative judge failed to inform the appellant of the Board’s jurisdictional

requirements prior to dismissing the appeal for lack of jurisdiction). 

ORDER

For the reasons discussed above, we grant the appellant’s petition for

review, vacate the initial decision, and remand this case to the New York Field

Office. On remand, the administrative judge shall provide the appellant with 

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jurisdictional notice in an IRA appeal and the opportunity to establish jurisdiction

over this appeal.3

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

3

 Our final order dismissing the appellant’s IRA appeal in Fitzpatrick II for lack of

Board jurisdiction for failing to exhaust administrative remedies with OSC does not

impact our disposition regarding this appeal. See Bump v. Department of the Interior,

64 M.S.P.R. 326, 331-33 (1994) (holding that a jurisdictional dismissal of a prior IRA

appeal for failure to exhaust administrative remedies with OSC did not bar a second

IRA appeal of the same claim after OSC remedies were exhausted).

6