NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3002 PATRICIA A. MORTON, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

____________________ DECIDED: March 10, 2006

____________________ Before LOURIE, LINN, and DYK, Circuit Judges

. PER CURIAM. Patricia A. Morton appeals from the final decision of the Merit Systems Protection Board (“Board”) di smissing her appeal from t he United States Postal Service (the “USPS”) for lack of jurisdiction. Morton v. U.S.P.S. , No. AT-0752- 05-0367-I-1 (M.S.P.B. Aug. 18, 2005). Because the Board did not err in holding that her claim was barred by res judicata, we affirm

. BACKGROUND Morton, a USPS employee, was remo ved from her position as a Mail Handler, effective July 6, 1994. S he appealed her removal but the appeal was dismissed as moot based upon the USPS’s representati on that it would return her to the status quo ante. Morton v. U.S.P.S. , No. AT-0752-95-0209-I-1(M.S.P.B. March 17, 1994) (“ Morton I”). The in itial decis ion became final on October 4, 1995 with no subs equent appeal to this court. See 5 C.F.R. § 1201.113 ( 2004). In June 1996, Morton filed a petition for enforcement of the initia l dec is ion in Morton I , alleging that she had not b een returned to the s t atus quo ante. In addition, Morton asserted t hat she was entitled to compensatory damages. The Administrative Judge (“AJ”) determined that the USPS ha d not made Morton completely whole and adjudica ted her originally-f iled appeal of the removal decision. Mo rton v. U.S.P.S. , No. AT-0752-95-0209-C-1; No. AT-0752- 95-0209-I-2 (M.S.P.B

. Oct. 30, 1996) (“ Morton II ”). The AJ concluded that the USPS did not prove its charges against Morton, reversed the USPS’s removal decision, and ordered the USPS to restor e Morton to the status quo ante. T he AJ did not address Morton’s request fo r compensatory damages . When neither party filed a petition for review, the initia l decision bec ame final on December 4, 1996. See 5 C.F.R. §1201.113 (2004). On February 5, 1997, Morton filed a petit ion for enforcement of the decision in Morton II . The AJ required the USPS to submit evidence that it had complied with the decision in Mor t on II . Afte r reviewing the submitted evidence of payment, the AJ found that the USPS complied with the dec ision in Morton II and dismis sed the petition for enforcement. See Morton v. U.S.P.S. , No. AT0752-95-0209-C-1 (M.S.P. B. June 27, 1997) (“ Morton III ”). Morton filed a petition for review of the Morton III decision by the full Board. Se e Morton v. U.S.P.S. , No. AT-0752-95-0209-C-1 (M.S

. P.B. July 30, 1999) (“ Mo rton IV ”). The Board issued an order to show cause, requiring the

06-3002 2USPS to submit further evidenc e of compliance with the decision in Morton II

. The USPS responded to that order, and Mort on replied by requesting punitive and compensatory damages based on an allegation of discrimination b y the USPS. T he Board f ound that USPS’s ev idence submitted in response to the order to show caus e was insufficient to prove compliance and therefore reversed the AJ’s decision in Morton III . The Board determined that t he request s for punitive and compens atory damages were not properly before it because they were not raised in the petition for enforcem ent. The Board observed that even if the damages issue were properly bef ore it, the Board c ould not award compensatory damages becaus e they co uld only be awarded based on a finding of discrimination. Moreover , the Board noted that it could not order an agency to pay punitiv e damages

. On August 26, 1999, the USPS submitted evidenc e that the Board found sufficient to prove that Morton had retur ned to the status quo ante. On October 12, 1999, the Board dismissed her Februar y 5, 1997 petition for enforcement of the Morton II decis ion as moot. See Morton v. U.S.P.S. , No. AT-0752-95-0209- X-1 (M.S.P.B. October 12, 1999) (“ Morton V ”). Morton appealed the denial of her request for compensatory and punitiv e damages in Morton IV and the Board’s dis m issal of her pet ition for enforcement in Morton V . We affirme d the Board’s determination that the damages issue was raised for the first time on petition for review and was ther efor e not properly befor e the Board. Morto n v. U.S.P.S. , 232 F.3d 911 (Fed. Cir. 2000). (“ Morton VI ”)

06-3002 3On February 17, 2005, Morton filed another appeal to the Board, again challenging her July 6, 1994 removal and requesting compens atory damages. The AJ iss ued an Ack nowledgem ent Order, informing the parties that the appeal presented a jurisdictional issue and affording them an opportunity to submit argument and evidence on that issue. The USPS filed a motion to dismis s for lack of jurisdiction. Morton filed a subm is sion to the Board but failed to address the USPS’s motion to dismiss or the jurisdictional issue. 1 The AJ then dismissed the appeal for lack of jurisdiction on the basis of res judicata and collateral estoppel. Morton v. U.S.P.S. , No. AT-0752-05-0367-I1 (March 28, 2005) (“ Morton VII ”). The AJ determined that res judicata applie d because M o rton “previously brought a caus e of action under the s a me operativ e facts on wh ich this appeal is bas ed.” Id. , slip op. at 4. Also , according to the AJ, Morton’s request for compensatory damages was barred by c o llateral estoppel, because in connection with the challen ge of her removal, we prev iously addressed and denied her request for damages. Id. ; See Morton VI . Morton appealed t he AJ ’s decision to the full B oard, which denied her petition for review, thereby rendering the AJ’s decis ion final. See 5 C.F.R. § 1201.113(b) (2004). Morton timely appealed to this c our t, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

1 In her reply petitioner for the first time asserts that the AJ’s Acknowledgement Order was not properly s e rved on her because it was mailed to the incorrect address. Petitioner ma kes no effort to demonstrate prejudice from this error, if it oc curred, and there appears to be no dispute as to the fact that petitioner’s dam ages claims were raised and resolved in the earlier proceedings.

06-3002 4DISCUSSI ON Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law t hat we review de nov o

. Campion v. Merit Sys. Prot. Bd. , 326 F.3d 1210, 1213 (Fed. Cir. 2003). Morton, as the petitioner, has the burden of establishing the Board’s jurisdiction by a pr eponderance of the evidence. See id

. at 1213-14. On appeal, Morton contends that t he USPS committed fraud in connection with her 1994 removal. Specifically, s he contends that t he USPS impro perly charged her with fals ifying paper s, thereafte r suspending and ultimately removing her. She further asserts that over several years she has prov ided evidenc e to show that she did not falsify papers but that evidence was not properly considered . Morton also a ssert s that the USPS has not adequ ately compensated her for her alleged wrongful removal. The government responds that the Board properly dism issed the appeal of her 1994 removal on the bas is of res judicata because the merits of her removal we re previou s ly raised and decided. We conclude that the Board properly decided that it did not have jurisdiction over Morton’s appeal on t he ground of res judicata. “Under the doctrine of res judicata, a final argument on the merits of an action precludes the parties from relitigating issues that were raised or could have been raised in that action.” Stearn v. Dep’t of the Navy , 280 F.3d 13 76, 1380 ( F ed. Cir. 2002) (citation omitted). R e s judicata applies if “(1) the prior decision was rendered by a forum with competent jurisdiction; (2) t he prior decision was a final decis ion on

06-3002 5the merits; and (3) the same cause of acti on and the same parties or their privies were involved in both cases.” Carson v. Dep’t of Energy , 398 F.3d 1369, 1375 (Fed. Cir. 2005). All three criteria are me t here. In 1996, Mo rton filed an appeal of her removal. The Board considered the evidence of record and rendered a final decis ion on the merits of her 1994 removal in Morton II , reversing the USPS’s ac tion, and ordering the USPS to return Morton to the status quo ante. Morton then filed a petition for enforcem ent i n which we addressed the damages issue in our decision in Morton VI . Morton has therefore already challenged her removal action, and the Board found that the USPS improperly removed her. Morton is asking this c ourt to reevaluate aspects of her 1994 removal and alle ges that the compensation she received did not sufficiently make her whole. Howev e r, in the decis ion in Morton V , the Board determined that she was made whole. Because she previous ly br ought an appeal of her removal and a final decision was rendered on that cause of action, she is precluded under the doctrine of res judicata 2 from bri nging the present claim involving the same operative facts. Accord ingly, we affirm.

2 Because we dec ide this appe al bas ed on the doctrine of res judicata, we need not discuss collateral estoppel.

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