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”) dismissing her appeal from the 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 removed from her position as a Mail 

Handler, effective July 6, 1994. She appealed her removal but the appeal was 

dismissed as moot based upon the USPS’s representation 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 initial decision became final on 

October 4, 1995 with no subsequent appeal to this court. See 5 C.F.R. §

1201.113 (2004). In June 1996, Morton filed a petition for enforcement of the 

initial decision in Morton I, alleging that she had not been returned to the status 

quo ante. In addition, Morton asserted that she was entitled to compensatory 

damages. The Administrative Judge (“AJ”) determined that the USPS had not 

made Morton completely whole and adjudicated her originally-filed appeal of the 

removal decision. Morton 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 restore Morton to the status quo ante. The 

AJ did not address Morton’s request for compensatory damages. When neither

party filed a petition for review, the initial decision became final on December 4, 

1996. See 5 C.F.R. §1201.113 (2004). 

On February 5, 1997, Morton filed a petition for enforcement of the 

decision in Morton II. The AJ required the USPS to submit evidence that it had 

complied with the decision in Morton II. After reviewing the submitted evidence 

of payment, the AJ found that the USPS complied with the decision in Morton II

and dismissed 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. See Morton v. U.S.P.S., No. AT-0752-95-0209-C-1 (M.S.P.B. July 30, 

1999) (“Morton IV”). The Board issued an order to show cause, requiring the 

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

The USPS responded to that order, and Morton replied by requesting punitive 

and compensatory damages based on an allegation of discrimination by the 

USPS. The Board found that USPS’s evidence submitted in response to the 

order to show cause was insufficient to prove compliance and therefore reversed 

the AJ’s decision in Morton III. The Board determined that the requests for 

punitive and compensatory damages were not properly before it because they

were not raised in the petition for enforcement. The Board observed that even if

the damages issue were properly before it, the Board could not award 

compensatory damages because they could only be awarded based on a finding 

of discrimination. Moreover, the Board noted that it could not order an agency to 

pay punitive damages. 

On August 26, 1999, the USPS submitted evidence that the Board found 

sufficient to prove that Morton had returned to the status quo ante. On October 

12, 1999, the Board dismissed her February 5, 1997 petition for enforcement of 

the Morton II decision 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 punitive damages in Morton IV and the 

Board’s dismissal of her petition for enforcement in Morton V. We affirmed the 

Board’s determination that the damages issue was raised for the first time on 

petition for review and was therefore not properly before the Board. Morton v.

U.S.P.S., 232 F.3d 911 (Fed. Cir. 2000). (“Morton VI”) 

06-3002 3
On February 17, 2005, Morton filed another appeal to the Board, again 

challenging her July 6, 1994 removal and requesting compensatory damages. 

The AJ issued an Acknowledgement 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 dismiss for 

lack of jurisdiction. Morton filed a submission 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 applied 

because Morton “previously brought a cause of action under the same operative 

facts on which this appeal is based.” Id., slip op. at 4. Also, according to the AJ, 

Morton’s request for compensatory damages was barred by collateral estoppel, 

because in connection with the challenge of her removal, we previously

addressed and denied her request for damages. Id.; See Morton VI. Morton 

appealed the AJ’s decision to the full Board, which denied her petition for review,

thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b) (2004). 

Morton timely appealed to this court, 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 served on her because it was mailed 

to the incorrect address. Petitioner makes no effort to demonstrate prejudice 

from this error, if it occurred, and there appears to be no dispute as to the fact 

that petitioner’s damages claims were raised and resolved in the earlier

proceedings. 

06-3002 4
DISCUSSION 

Whether the Board has jurisdiction to adjudicate a particular appeal is a 

question of law that we review de novo. 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 preponderance of the evidence. See id.

at 1213-14. 

On appeal, Morton contends that the USPS committed fraud in connection

with her 1994 removal. Specifically, she contends that the USPS improperly

charged her with falsifying papers, thereafter suspending and ultimately removing 

her. She further asserts that over several years she has provided evidence to 

show that she did not falsify papers but that evidence was not properly 

considered. Morton also asserts that the USPS has not adequately 

compensated her for her alleged wrongful removal. The government responds 

that the Board properly dismissed the appeal of her 1994 removal on the basis of

res judicata because the merits of her removal were previously raised and

decided. 

We conclude that the Board properly decided that it did not have 

jurisdiction over Morton’s appeal on the 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 1376, 1380 (Fed. Cir. 2002)

(citation omitted). Res judicata applies if “(1) the prior decision was rendered by

a forum with competent jurisdiction; (2) the prior decision was a final decision on 

06-3002 5
the merits; and (3) the same cause of action 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 met here. In 1996, Morton filed an appeal 

of her removal. The Board considered the evidence of record and rendered a 

final decision on the merits of her 1994 removal in Morton II, reversing the 

USPS’s action, and ordering the USPS to return Morton to the status quo ante.

Morton then filed a petition for enforcement in 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 court to reevaluate aspects of her 1994 removal and alleges

that the compensation she received did not sufficiently make her whole. 

However, in the decision in Morton V, the Board determined that she was made 

whole. Because she previously brought an appeal of her removal and a final 

decision was rendered on that cause of action, she is precluded under the 

doctrine of res judicata2

 from bringing the present claim involving the same 

operative facts. Accordingly, we affirm. 

 2 Because we decide this appeal based on the doctrine of res 

judicata, we need not discuss collateral estoppel. 

06-3002 6