NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3134 BRIAN D. SULLIVAN, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

Brian D. Sullivan , of North Las Vegas, Nevada, pro se. Courtney E. Sheehan , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Departm ent of Justice, of Washingt on, DC, for respondent. With her on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Kenneth M. Dintzer , Assistant Director. Appealed from: Merit Syst ems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3134

BRIAN D. SULLIVAN, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

Petition for review of the Merit Syst ems Protection Board in SF0752070760-I-1.

___________________________ DECIDED: June 24, 2008

___________________________ Before NEWMAN, GAJARSA, Circuit Judges and WARD, District Judge

. ∗ NEWMAN, Circuit Judge

. Mr. Brian D. Sullivan appeals t he Merit Systems Protection Board’s order dismissing, as res judicata, his appeal relating to his removal. 1 We affirm the dismissal. DISCUSSION Mr. Sullivan was employed as a lock and secu rity specialist at the Federal Prison

∗ Honorable T. John Ward, United States District Court for the Eastern District of Texas, sitting by designation. 1 Sullivan v. Dep’t of Justice , Docket No. SF-0752-07-0760-I-1 (M.S.P.B. Dec. 11, 2007).2008-3134 2 Camp Nellis in North Las Vegas, Nevada, until he was removed from that position effective February 25, 2000. The removal was on t he ground of disrespectful conduct toward a supervisor, relating to an event that occu rred on August 9, 1999. Mr. Sullivan appealed to the Merit Systems Protection Board. After tw o hearings, necessitated by the death of the assigned administrative judge after the first heari ng, the substituted administrative judge affirmed the removal. The administrative j udge found that the agency proved some but not all of the allegations comprising the charge, t hat it afforded Mr. Sulliv an due process, that his various defenses were not proved, and that the agency considered all of the relevant factors and imposed a penalty that was within tolerable limits of reasonableness. Mr. Sullivan petitioned the full Board for review, but the initial decision became final when the two Board members who review ed the initial decision did not agree on the disposition. 2 Chairman Suzanne T. Marshall voted without opini on to affirm the initial decision; Board Member Beth S. Slavet fil ed an opinion explaining that she would remand the appeal for further adjudication of Mr. Sullivan’s retalia tion claim and the penalty. Board Member Slavet found the adminis trative judge’s findings deficient with respect to Mr. Sullivan’s defense of retaliation for filing a grievance in connection with an earlier disciplinary action; she also found that several factors relev ant to the reasonableness of the penalty had not been considered and showed that the penalty of removal was beyond the bounds of reasonableness. Mr. Sullivan appealed the MSPB’s final decision by filing a complaint in the U.S. District Court for the District of Nevada, assert ing a Title VII race discrimination charge and

2 Only two, rather than three, Board members reviewed the initial decision because of a vacancy in the Board. In thes e circumstances 5 C.F. R. §1200.3(b) provides that a split decision is deemed an affirmance.2008-3134 3 requesting review of the remaining aspects of the Board’s decision. On August 27, 2004 the district court granted summary judgment in favor of the government and affirmed the removal. Mr. Sullivan appealed to the Court of Appeals for the Ninth Circuit. While the appeal was pending, the parties executed a se ttlement agreement on March 15, 2005 in which Mr. Sullivan released all claims against the defendants relating to subject matter that gave rise to the case, in consideration of a $5,000 payment from the government. The settlement agreement stated t hat the parties agreed to di smissal with prejudice. On August 22, 2007 Mr. Sullivan filed a new appeal to the MSPB, again contesting his February 25, 2000 removal. The Board ordered Mr. Sullivan to show cause why the appeal was not precluded by the doctrine of re s judicata. Mr. Sullivan responded but did not address the res judicata issue, and on De cember 11, 2007, the Board dismissed the appeal on the ground of res judicata . Mr. Sullivan appeals this dismissal to this court. In his briefs Mr. Sullivan does not address the res judicata issue, but rather challenges the merits of the Board decisi ons of 2001 and 2002, and requests that this court reverse his removal. The government, in response, characterize s the current petiti on as an appeal of the December 11, 2007 action of the Board. We agr ee that the current appeal is directed to the December 11, 2007 decision, and is timely only to the ext ent that it challenges the December 11, 2007 decision. See 5 U.S.C. §7703(b). We review that decision in view of the limited scope of review pr ovided by 5 U.S.C. §7703(c). Mr. Sullivan does not address the application of res judicata at all. He makes various assertions about the earlier case, ar guing among other things that the initial decision should have been reviewed by three rat her than two Board mem bers, that certain2008-3134 4 evidence was not considered, that the analysis of his retaliation defense was deficient, that the effect of an earlier unresolved Unfair Labor Practices charge he had brought against his union was not properly cons idered, and that the penalty was unreasonable. The government responds that t hese arguments could and should have been raised in the earlier appeal and that the MSPB correctly dismi ssed the current appeal as res judicata. Claim preclusion or res judicata applies where (1) the prior deci sion was rendered by a forum with competent jurisdicti on; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same pa rties or their privies were involved in both

cases. Carson v. Dep’t of Energy , 398 F.3d 1369, 1375 (Fed. Cir. 2005); see also Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326 n.5 (1979). The prior appeals involved the same parties, in a forum of competent jurisdiction. The parties agreed in their settlement to dismiss the appeal then pendi ng, with prejudice. See Pactiv Corp. v. Dow Chem. Co. , 449 F.3d 1227, 1231 (Fed. Cir. 2006) (“A dismissal wit h prejudice is a j udgment on the merits for purposes of claim preclusion.”). This pet ition arose from the same event Mr. Sullivan previously challenged and eventually settled, namel y, his removal on February 25, 2000. In the settlement agreement Mr. Su llivan agreed that he could not br ing any cause of action “of whatsoever kind and nature, ar ising from . . . the same subject matter that gave rise to” the earlier MSPB case. The Board correctly concluded that any new theories Mr. Sullivan now presents should have been raised in hi s earlier proceedings, for the arguments concern the same “cause of action,” which is his challenge to his removal. Mr. Sullivan furthermore has not shown that he could not hav e presented his current theories earlier, or that due process or any other concerns undermine the prec lusive effect of the earlier adjudication. See, e.g. , Pactiv , 449 F.3d at 1233-34 (discussing narrow exceptions to the2008-3134 5 application of claim preclusion). We affi rm the Board’s dismissal on this ground. We have considered all of Mr. Sullivan’s other arguments, but they do not change the result. No costs.