UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES F. GIBSON,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

SF-1221-13-0442-W-1

DATE: August 21, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

James F. Gibson, Reno, Nevada, pro se.

Sara Jo Prose, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his individual right of action (IRA) appeal in part due to res judicata 

and in part for lack of jurisdiction. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

initial decision is based on an erroneous interpretation of statute or regulation or 

the erroneous application of the law to the facts of the case; the judge’s rulings 

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review. We MODIFY

the initial decision to the extent that the administrative judge determined that the 

appellant was barred from challenging his January 1989 termination on res 

judicata grounds; instead, this claim should have been dismissed because the 

termination action predated the effective date of the Whistleblower Protection Act

(WPA). Except as expressly modified by this Final Order, we AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In 1989, the agency terminated the appellant during his probationary period. 

He filed an equal employment opportunity (EEO) complaint, and he was 

reinstated as part of a settlement agreement. Gibson v. Card, EEOC DOC 

03920084, 1992 WL 1374211 at *1 (June 29, 1992). In 1991, the appellant was 

removed from his Aviation Safety Inspector position on two charges: failure to 

satisfactorily complete flight course 20702, and insubordination in not complying 

with the agency’s direction that he complete a reexamination of his airman 

competency. Id. The appellant filed a Board appeal. The administrative judge 

sustained the agency’s removal and found that the appellant failed to prove that 

he was removed based on reprisal for his prior EEO activity. Id. The Board 
3

denied the petition for review, and the Equal Employment Opportunity 

Commission affirmed the Board’s decision regarding the discrimination claim.

Id. In 2012, the appellant filed an Office of Special Counsel complaint, and in 

2013, he filed an IRA appeal, claiming that his 1989 termination, his 1991 

removal, and other actions constituted reprisal for prior whistleblowing activity. 

See, e.g., Initial Appeal File (IAF), Tabs 1, 5, 7, 10, 15, 17-18, 24, 26, 31, 34.

¶3 In the initial decision, the administrative judge dismissed the appeal, in part 

based on res judicata, and in part for lack of jurisdiction. IAF, Tab 35, Initial 

Decision (ID). The appellant has filed a petition for review; the agency has filed 

a response; and the appellant has filed a reply. Petition for Review (PFR) File, 

Tabs 1, 5-6. In the appellant’s lengthy petition for review, he appears to review 

the factual basis for his complaints and makes other broad assertions of error.

¶4 Under the doctrine of res judicata, a valid, final judgment on the merits of

an action bars a second action involving the same parties or their privies based on 

the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 

(1995). Res judicata precludes parties from relitigating issues that were, or could 

have been, raised in the prior action, and is applicable if: (1) the prior judgment 

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

a final judgment on the merits; and (3) the same cause of action and the same 

parties or their privies were involved in both cases. Id. The Board has held that 

generally an individual who appeals his removal directly to the Board is barred by 

res judicata from bringing, after exhausting his administrative remedies, a second 

whistleblower appeal challenging the same removal action. Ryan v. Department 

of the Air Force, 113 M.S.P.R. 27, ¶ 13 (2009) (citing Sabersky v. Department of 

Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 

2003)). Based on this precedent, we discern no error with the administrative 

judge’s conclusion that the appellant’s earlier Board appeal regarding his 1991 

removal bars him from raising a whistleblower appeal challenging the same

action in this matter. 
4

¶5 In the initial decision, the administrative judge also determined that the 

appellant was barred by res judicata from pursuing a claim related to his 1989 

termination because the subsequent EEO complaint was resolved by a settlement 

agreement. See ID at 4, 6. As support for her conclusion, the administrative 

judge cited Ford-Clifton v. Department of Veterans Affairs, 661 F.3d 655 (Fed. 

Cir. 2011), and Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir. 1993). See 

ID at 4. We find that both of these cases are distinguishable and conclude that it 

is not appropriate to dismiss this claim on the grounds of res judicata. 

¶6 In Ford-Clifton, our reviewing court noted that it was “widely agreed that 

an earlier dismissal based on a settlement agreement constitutes a final judgment 

on the merits in a res judicata analysis.” However, the court in Ford-Clifton 

found that the parties’ settlement agreement was “lawful” and “a full and 

complete settlement of all issues in the appeal.” Ford-Clifton, 661 F.3d at 

660-61. Here, however, the parties’ settlement agreement, which resolved the 

appellant’s EEO complaint, is not in the record. Although it appears that the 

agreement provided for the appellant’s reinstatement and reassignment, and it 

also included benefits and back pay, Gibson, EEOC DOC 03920084, 1992 WL 

1374211 at *1; IAF, Tab 5 at 11, we cannot tell, and neither party represents, 

whether the agreement constituted a “full and complete settlement” or contained 

similar language regarding the 1989 termination and any other possible claims

arising at that time. 

¶7 In Mays, the appellant’s union settled his grievance regarding a 21-day 

suspension, he subsequently filed a Board appeal regarding that same action, and 

the court concluded that the Board lacked jurisdiction over the appeal because the 

appellant did not specifically reserve in his grievance the right to file a Board 

appeal. Mays, 995 F.2d at 1057-60. Because the parties’ settlement agreement is 

not in the record, we cannot ascertain whether the appellant waived his Board 

appeal rights regarding his termination or any other actions during that time 

frame. For these reasons, we are not persuaded by the administrative judge’s 
5

reliance on these cases and cannot conclude that the appellant’s 1989 termination 

is barred by res judicata. See Williams v. Department of Health & Human 

Services, 112 M.S.P.R. 628, ¶ 9 (2009) (holding that a settlement agreement that 

does not involve an examination of the merits of an agency action does not 

constitute a judgment on the merits for res judicata purposes). 

¶8 We note, however, that the appellant’s January 3, 1989 termination predates 

the July 9, 1989 effective date of the WPA. Lundberg v. Department of the 

Navy, 43 M.S.P.R. 382, 385 (1990). Accordingly, the appellant is barred from 

pursuing this action and any other personnel action that allegedly occurred before 

the effective date of the WPA. See McVay v. Arkansas Nat. Guard, 80 M.S.P.R. 

120, 123 (1998) (agreeing with the administrative judge that the letter of 

reprimand the appellant received cannot serve as the basis for an IRA appeal 

because it was issued on May 4, 1989); Lundberg, 43 M.S.P.R. at 385 (because 

the appellant received notice of his pending agency proceeding nearly 4 years 

before the effective date of the WPA, the WPA does not apply).

¶9 We also discern no error with the administrative judge’s decision to dismiss 

the appeal for lack of jurisdiction because the appellant did not nonfrivolously 

allege that the agency took a personnel action against him. ID at 5-7. In the 

initial decision, the administrative judge discussed the following other personnel 

actions that the appellant alleged were taken against him: (1) his 2007 

termination from a private company; (2) his belief that his former supervisor, 

J.M., made negative comments about his flying ability and other disparaging 

remarks over the years, which “effectively block[ed] him from obtaining a job in 

the aviation industry”; (3) an EEO counselor told him in May 2012 that agency 

employee J.M. said negative things about him during an EEO investigation; and 

(4) his efforts regarding a 1993 checkride (also called a practical test), when he 

had to enroll in refresher training at flight school. ID at 6-7. In relevant part, the 

administrative judge noted that the whistleblower statutes prohibit a “personnel 

action” from being taken “with respect to any employee or applicant for 
6

employment,” 5 U.S.C. § 2302(b)(8), and the appellant was not an employee or 

applicant for employment at any time after his 1991 removal, when these 

personnel actions allegedly occurred. See ID at 6-7. She also noted that J.M.’s 

alleged negative comments did not constitute a personnel action. ID at 7.

¶10 We discern no error with the administrative judge’s decision in this regard. 

In Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 10 (2008), the 

Board held that an action taken by a private sector employer “does not meet the 

definition of ‘personnel action’ since it was not taken with respect to an employee 

in a covered position in an agency or a governmental corporation,” and it 

affirmed the administrative judge’s dismissal for lack of jurisdiction. Similarly, 

here the Board lacks jurisdiction over any actions taken by the private employer

in 2007. 

¶11 The appellant also has not persuaded us that the administrative judge erred 

in her analysis of the remaining actions because, at the time of these alleged 

actions, the appellant was neither an “employee” nor an “applicant” as set forth 

in 5 U.S.C. §§ 2302(a)(2), (b)(8). See, e.g., Nasuti v. Merit Systems Protection 

Board, 376 F. App’x 29, 33-34 (Fed. Cir. 2010) (holding that the agency’s 

issuance of a Standard Form 50 did not qualify as a “personnel action” under the 

WPA because it occurred after the appellant was no longer employed by the 

agency).

2

 Moreover, the appellant has not identified, and we are not aware of,

any legal authority to support the proposition that negative references by J.M. 

constitute a personnel action under the WPA.

3

 2 Although Nasuti is an unpublished decision, the Board may rely on unpublished U.S. 

Court of Appeals for the Federal Circuit decisions if it finds the court’s reasoning 

persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001). 

We find the court’s reasoning persuasive.

3 Because we agree with the administrative judge that the appellant has not identified a 

personnel action under the WPA, we need not address whether, among other things, the 

appellant exhausted his administrative remedies or whether he made a nonfrivolous 

allegation of a protected disclosure. See Yunus v. Department of Veterans Affairs, 

242 F.3d 1367, 1371 (Fed. Cir. 2001).
7

¶12 Finally, the appellant includes documentation on review, including an 

affidavit from H.H.P, his March 1990 performance appraisal, an On-the-Job 

Training Progress Report, a 1990 Order Granting Request for Stay regarding the 

“609” decertification of the appellant’s airman’s pilot’s license, 4 and his May 

2013 discovery requests to the agency. See PFR File, Tab 1, Exhibits. These 

documents were in the record below and do not constitute new evidence, or they 

do not change the outcome on review. Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the 

Interior, 3 M.S.P.R. 247, 256 (1980). We have considered the appellant’s 

remaining arguments, but they do not warrant a different outcome.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

 4 Gibson v. Department of Transportation, MSPB Docket No. SF122190S0721, Stay 

Order (Nov. 9, 1990), found at IAF, Tab 26 at 21-25.
8

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which 

iscontained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed 

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 

appellants before the Federal Circuit. The Merit Systems Protection Board
9

neither endorses the services provided by any attorney nor warrants that any 

attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board