NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ERIC ROSE,

Petitioner

v.

DEPARTMENT OF DEFENSE,

Respondent

______________________ 

2017-1621

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-1221-15-0538-W-1.

______________________ 

Decided: August 11, 2017

______________________ 

 ERIC ROSE, Gulfport, MS, pro se.

 STEVEN C. HOUGH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON 

KIDD-MILLER. 

______________________ 

Before WALLACH, CHEN, and HUGHES, Circuit Judges.
2 ROSE v. DEP’T OF DEF. 

PER CURIAM. 

Petitioner Eric Rose appeals the final order of the 

Merit Systems Protection Board (“MSPB”) affirming an 

administrative judge’s (“AJ”) dismissal of his appeal 

based on res judicata. See Rose v. Dep’t of Def. (Rose III), 

No. AT-1221-15-0538-W-1, 2016 WL 7439325, at ¶ 1 

(M.S.P.B. Dec. 15, 2016). We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(9) (2012). We affirm.

BACKGROUND1

Mr. Rose is a former employee of the U.S. Department 

of Defense (“DOD”). Rose III, 2016 WL 7439325, at ¶ 3. 

Due to a supervisor’s false statements about him, Mr. 

Rose was arrested, issued two criminal tickets, and 

barred from entering the duty station where he worked as 

a Store Worker/Forklift Operator. Id. DOD eventually 

removed Mr. Rose from his position due to an extended 

absence without leave. Id. ¶ 4.

Mr. Rose filed three appeals to the MSPB relating to 

his barment and eventual removal. First, Mr. Rose 

unsuccessfully challenged his barment as a constructive 

suspension. See Rose v. Dep’t of Def. (Rose I), 118 

M.S.P.R. 302, 303 (2012).

Second, Mr. Rose challenged his removal and, following two remands, the MSPB issued a final order affirming 

the AJ’s decision to reverse Mr. Rose’s removal. See Rose 

v. Dep’t of Def. (Rose II), No. AT-0752-12-0063-B-2, 2015 

WL 4736787, at ¶¶ 5–10, 15 (M.S.P.B. Aug. 10, 2015). 

The MSPB rejected Mr. Rose’s argument that he was 

removed as reprisal for certain whistleblowing activities 

“because he did not identify such a claim for adjudication 

1 Because the material facts are not in dispute, we

cite to the facts as recited in the MSPB’s prior decisions 

pertaining to Mr. Rose.

 
ROSE v. DEP’T OF DEF. 3

below or in his prior petition for review”; and it rejected 

his argument that he was retaliated against for filing a 

complaint with the Equal Employment Opportunity 

Commission because this latter charge was “barred by the 

law of the case doctrine.” Id. ¶ 13.

Third, in the instant appeal, which was filed during 

the pendency of his second appeal and after he had filed a 

complaint with the Office of Special Counsel, Mr. Rose

filed an individual right of action (“IRA”) appeal. Rose III, 

2016 WL 7439325, at ¶ 7; see Resp’t’s Suppl. App. 28, 31. 

Mr. Rose contended that his supervisor retaliated against 

him for his whistleblowing activity by “provid[ing] false 

information to base security and negative information to 

the naval commander,” leading to his barment and eventual removal. Rose III, 2016 WL 7439325, at ¶ 7. The 

MSPB affirmed the AJ’s dismissal of Mr. Rose’s appeal, 

determining that, inter alia, Mr. Rose’s claims were 

barred by the doctrine of res judicata. Id. ¶ 15.

DISCUSSION

I. Standard of Review and Legal Standard

We affirm the MSPB’s decision unless, inter alia, it is 

“not in accordance with law.” 5 U.S.C. § 7703(c)(1) (2012). 

We review the MSPB’s legal determinations de novo. 

Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed. 

Cir. 2008). “The petitioner bears the burden of establishing error in the [MSPB]’s decision.” Harris v. Dep’t of 

Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

The doctrine of res judicata “prevents parties from litigating issues that could have been raised in a prior 

action” and arise from the same operative facts. Carson v. 

Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005); see 

Renville v. Dep’t of Health & Human Servs., 632 F. App’x 

611, 613 (Fed. Cir. 2015) (“Res judicata serves to limit . . . claims that the party could have raised in an earlier 

action arising from the same transaction or occurrence.”). 
4 ROSE v. DEP’T OF DEF. 

The doctrine applies when: “(1) the prior decision was 

rendered by a forum with competent jurisdiction; (2) the 

prior decision was a final decision on the merits; and 

(3) the same cause of action and the same parties or their 

privies were involved in both cases.” Carson, 398 F.3d at 

1375 (citation omitted). “In order that a final judgment 

shall be given res judicata effect in a pending action, it is 

not required that the judgment shall have been rendered 

before that action was commenced.” Restatement (Second) of Judgments § 14 cmt. a (Am. Law. Inst. 1982); see, 

e.g., Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937–38 (5th 

Cir. 2000) (applying Restatement (Second) of Judgments 

§ 14 and affirming a dismissal based on res judicata). The 

“same cause of action” clause of the third Carson factor is 

met when the same event gave rise to both suits, even if a 

different legal theory is pled in each appeal. See, e.g., 

N.J. Inst. of Tech. v. Medjet, Inc., 47 F. App’x 921, 923–25 

(Fed. Cir. 2002). Whether the MSPB properly dismissed 

an action based on res judicata raises a question of law 

that we review de novo. See Renville, 632 F. App’x at 613.

II. The Doctrine of Res Judicata Bars Mr. Rose’s Appeal

Mr. Rose contends that the MSPB did not properly 

apply the doctrine of res judicata. See Pet’r’s Br. 1, 3–4. 

Specifically, he argues that neither the AJ nor the MSPB 

reached the merits of the whistleblower claim, deciding 

instead that they did not have jurisdiction over that 

claim. Id. at 3–4. 

The MSPB appropriately determined that res judicata 

barred Mr. Rose’s whistleblower claim based on its decision in Rose II. As to the first Carson factor, the MSPB 

has jurisdiction over Mr. Rose’s original appeals challenging “a suspension of more than [fourteen] days” or “a 

removal.” 5 U.S.C. § 7512; see id. § 7513(d). As to the 

second Carson factor, the MSPB issued a final decision on 

the merits regarding Mr. Rose’s prior appeals before 
ROSE v. DEP’T OF DEF. 5

giving preclusive effect to those decisions in the instant 

IRA appeal. See Rose II, 2015 WL 4736787, at ¶ 1. 

As to the third Carson factor, even though Mr. Rose 

attempts to distinguish his current whistleblowing claim, 

this appeal involves the same parties and the same operative facts as Rose II. In Rose II, Mr. Rose challenged the 

DOD’s actions that led to his suspension and removal. 

See id. ¶¶ 1–2. The same operative facts were discussed 

in his prior appeal. See id. ¶ 2 (reviewing Mr. Rose’s 

supervisor’s false statements and Mr. Rose’s subsequent 

barment). As such, Mr. Rose could have raised a whistleblower claim based on his suspension or removal in Rose 

II. See 5 C.F.R. § 1209.2(b) (2017) (providing jurisdiction 

to the MSPB over certain appeals relating to whistleblowing and other protected activities). Although Mr. Rose 

attempted to raise a whistleblower claim before the MSPB

in Rose II, the MSPB refused to consider it “because he 

did not identify such a claim for adjudication below or in 

his prior petition for review.” Rose II, 2015 WL 4736787, 

at ¶ 13. Mr. Rose’s failure to properly raise a whistleblower claim as a defense in Rose II prevents him from 

raising it now to re-challenge his removal. Cf. Sabersky v. 

Dep’t of Justice, 61 F. App’x 676, 677 (Fed. Cir. 2003). 

Thus, the doctrine of res judicata bars Mr. Rose’s appeal. 

CONCLUSION

We have considered Mr. Rose’s remaining arguments 

and find them unpersuasive. Accordingly, the Final 

Order of the Merit Systems Protection Board is 

AFFIRMED

COSTS

Each party shall bear its own costs.