NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3311 

PATRICK W. DOOLEY, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

Patrick W. Dooley, of Baton Rouge, Louisiana, pro se. 

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With her on 

the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, 

Director, and Todd M. Hughes, Deputy Director. 

Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3311 

PATRICK W. DOOLEY, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Petition for review of the Merit Systems Protection Board in DA0752080126-I-1. 

__________________________ 

DECIDED: January 9, 2009 

__________________________ 

Before RADER, FRIEDMAN and, LINN, Circuit Judges. 

PER CURIAM. 

Petitioner Patrick W. Dooley (“Dooley”) petitions for review of a final decision of 

the Merit Systems Protection Board (“Board”) dismissing on the basis of res judicata his 

claim that the Department of Veterans Affairs (“DVA”) violated his First Amendment 

rights. Dooley v. Dep’t of Veterans Affairs, No. DA0752080126-I-1 (M.S.P.B. Jan. 30, 

2008) (“Initial Decision”), review denied, Dooley v. Dep’t of Veterans Affairs, No. 

DA0752080126-I-1 (M.S.P.B. June 4, 2008). Because the Board lacked jurisdiction 

over Dooley’s First Amendment claim, we vacate the Board’s decision and remand with 

instructions to dismiss for lack of subject matter jurisdiction. 
Beginning in February 1991, Dooley worked for the DVA under a temporary 

appointment as a cemetery caretaker for the Port Hudson National Cemetery near 

Baton Rouge, Louisiana. In 1992, the DVA terminated Dooley’s appointment due to 

lack of funds. Dooley filed an independent right of action (“IRA”) appeal to the Board in 

1995 under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (2000), alleging that 

he was terminated in reprisal for protected whistleblowing activity. The Board rejected 

Dooley’s whistleblowing claim on the merits, and this court affirmed. See Dooley v. 

Dep’t of Veterans Affairs, No. DA1221950795-W-1 (M.S.P.B. Apr. 3, 1996), aff’d 101 

F.3d 717 (Fed. Cir. 1996) (table). Dooley filed a second IRA action in 1997, which the 

Board dismissed under the doctrine of res judicata. See Dooley v. Dep’t of Veterans 

Affairs, No. DA-1221970394-W-1 (M.S.P.B. July 31, 1997). Dooley then brought an 

action in the United States District Court for the Middle District of Louisiana, alleging 

that his termination violated his rights under the First Amendment. The district court 

dismissed Dooley’s complaint for lack of subject matter jurisdiction, reasoning that the 

claim was barred by the Civil Service Reform Act, 5 U.S.C. § 1101 et seq. (1996). 

Dooley v. Principi, No. 3:03-CV-00672 (Oct. 18, 2005). The Fifth Circuit affirmed. 

Dooley v. Principi, 250 Fed. Appx. 114 (5th Cir. 2007) (unpublished disposition). 

Dooley then filed the present claim—his third appeal to the Board—alleging that 

his termination violated his First Amendment rights. Initial Decision at 2-3. An 

administrative judge reviewed the record and found “no new issues raised by [Dooley] 

that were not included, or that could not have been included, in his prior appeals” to the 

Board. Id. at 4. The administrative judge therefore concluded that the doctrine of res 

judicata precluded litigation of Dooley’s First Amendment claims. Id. at 5. The 

2008-3311 2
administrative judge dismissed the case on the ground of res judicata, and the Board 

denied review. 

On appeal, the DVA concedes that the Board erred by concluding that Dooley 

could have previously raised a First Amendment claim during his IRA whistleblower 

appeal. See Resp’t’s Informal Br. & App. at 8. As the Board has held, the Board lacks 

jurisdiction over First Amendment claims in the context of an IRA appeal under the 

Whistleblower Protection Act. See Van Ee v. Envt’l Prot. Agency, 64 M.S.P.R. 693, 699 

(1994) (“[A]llegations that the agency violated the First Amendment and committed 

other prohibited personnel practices may not be heard in the context of an IRA appeal.” 

(citing Marren v. Dep’t of Justice, 51 M.S.P.R. 632, 637 (1991), aff’d, 980 F.2d 745 

(Fed. Cir. 1992)); see also Moeller v. Dep’t of Veterans Affairs, 62 M.S.P.R. 361, 364 

n.3 (Erdreich, Chairman, dissenting) (“[I]t is unnecessary to address the appellant’s 

argument . . . that his disclosure was protected by the First Amendment. . . . [T]he 

Board lacks jurisdiction to consider in this IRA appeal the claim of constitutional 

protection.” (citing Marren, 51 M.S.P.R. at 638-41)). The Board erred in this case when 

it concluded that Dooley could have included his First Amendment claim in his prior 

appeals. 

Notwithstanding this error by the Board, the DVA asks this court to affirm the 

Board’s dismissal. The DVA correctly points out that the Board not only would have 

lacked jurisdiction over Dooley’s First Amendment claim if he had brought it in his earlier 

appeals, but likewise lacked jurisdiction over Dooley’s First Amendment claim in this 

case. Because Dooley’s employment was temporary, he was not an “employee” for 

purposes of 5 U.S.C. § 7701(a). The Board therefore lacks jurisdiction to hear any 

2008-3311 3
2008-3311 4

appeal concerning Dooley’s termination, other than an IRA whistleblower claim. See, 

e.g., Anderson v. Merit Sys. Prot. Bd., 12 F.3d 1069, 1070-72 (Fed. Cir. 1993) (holding 

that Board lacks jurisdiction over appeals by temporary employees challenging 

termination). Both in the initial case and in this case, the Board lacked jurisdiction to 

render any judgment on Dooley’s First Amendment claim—including a judgment 

dismissing that claim on res judicata grounds. “If it lacks jurisdiction, the Board is 

without authority to decide the issues presented by a petitioner. The [Board] has only 

the jurisdiction conferred on it by Congress. This jurisdiction, provided by statute, 

creates the power of the [Board] to hear and decide a case, i.e., the Board’s subject 

matter jurisdiction. Without jurisdiction, the Board’s decision on the merits of a petition 

is a nullity.” Schmittling v. Dep’t of Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) 

(citations and internal quotation marks omitted). 

We decline to affirm a judgment that the Board lacked jurisdiction to enter, and 

instead we vacate the Board’s judgment so that the Board can dismiss Dooley’s petition 

for lack of subject matter jurisdiction. See, e.g., Pittman v. Dep’t of Justice, 486 F.3d 

1276, 1282 (Fed. Cir. 2007) (vacating and remanding with instructions to dismiss claim 

when Board acted without subject matter jurisdiction). We therefore vacate and remand

with instructions that the Board dismiss for lack of subject matter jurisdiction. 

COSTS 

No costs.