NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

WAYNE R. LUNDBERG,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-2536

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-3443-15-0448-I-1.

______________________ 

Decided: December 6, 2016

______________________ 

WAYNE R. LUNDBERG, Kettering, OH, pro se.

CALVIN M. MORROW, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before PROST, Chief Judge, CLEVENGER, and CHEN,

Circuit Judges.

PER CURIAM.
2 LUNDBERG v. MSPB

Wayne R. Lundberg, proceeding pro se, appeals a final 

decision of the Merit Systems Protection Board, dismissing his claims that the Department of the Air Force 

improperly charged him annual leave on several occasions 

when he was performing work in furtherance of the Air 

Force’s mission. Because the Board properly concluded 

that his claims were barred by the doctrine of collateral 

estoppel, we affirm. 

BACKGROUND

Mr. Lundberg is an employee of the Air Force at the 

Wright-Patterson Air Force Base in Ohio. He alleges that 

in 2003, the Air Force improperly charged him annual 

leave for time spent working to advance the Air Force’s 

mission. Likewise, he alleges the same impropriety 

concerning his attendance at a Turbine Engine Technology Symposium in 2010. 

Mr. Lundberg first appealed these alleged improper 

charges to the Board in November 2013. An administrative judge (AJ) issued an initial decision, dismissing Mr. 

Lundberg’s appeal for lack of jurisdiction. See Resp’t App. 

at 34–40. The AJ concluded that the Board lacked jurisdiction because its jurisdiction only extended to certain 

adverse personnel actions enumerated in 5 U.S.C. § 7512 

(2012), none of which cover the improper charging of 

annual leave. Resp’t App. at 35–36. In doing so, the AJ 

rejected Mr. Lundberg’s contention, among others, that 31 

U.S.C. § 1342 (2012), a provision generally prohibiting the 

federal government from accepting voluntary services, 

conferred jurisdiction upon the Board. See Resp’t App. at 

36. The AJ reasoned that even under the assumption 

that the Air Force had impermissibly accepted voluntary 

services from Mr. Lundberg, that did not change an 

allegation of improper charging of annual leave into a 

covered adverse personnel action under 5 U.S.C. § 7512. 

See Resp’t App. at 36. The Board affirmed the AJ’s deci-
LUNDBERG v. MSPB 3

sion in April 2014, accepting the AJ’s analyses. See id. at 

41–45 (Lundberg I).

Despite the Board’s affirmance, which Mr. Lundberg 

did not appeal, Mr. Lundberg filed another appeal to the 

Board in May 2015, again challenging the abovementioned annual leave charges.1 See Resp’t App. at 1–

10 (Lundberg II). On this second go-around, another AJ 

ordered Mr. Lundberg to show cause why his appeal 

should not be dismissed under the doctrine of res judicata. 

Id. at 3, 30–31. In response, Mr. Lundberg argued that 

the doctrine was inapplicable because the merits of his 

appeal had not been heard by a court of competent jurisdiction and continued to insist that the Board had jurisdiction over his appeal under 31 U.S.C. § 1342. Resp’t 

App. at 4, 32–33. The AJ rejected his response, dismissing the appeal on the ground of collateral estoppel in June 

2016. Id. at 3–5. 

Mr. Lundberg filed an appeal to our court from the 

AJ’s decision, which became the final decision of the 

Board after he declined to seek the Board’s review. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

We will affirm the decision of the Board unless it is: 

(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without 

following the procedures required by law; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2012). 

1 The alleged conduct differed in that Mr. Lundberg 

now asserted that the Air Force improperly charged him 

annual leave in 2005 and 2006, in addition to 2003 and 

2010, for time spent furthering the Air Force’s mission. 

See Resp’t App. at 2 (Lundberg II). As we will explain, 

this difference is inconsequential to our decision. See 

infra n.2. 

 
4 LUNDBERG v. MSPB

We review the Board’s determination of jurisdiction de 

novo, bearing in mind that its jurisdiction is confined to 

actions made appealable to it by law, rule, or regulation. 

E.g. ̧ Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380, 1382 

(Fed. Cir. 2008). Mr. Lundberg must prove the Board’s 

jurisdiction by a preponderance of the evidence. E.g., 

Rasing v. Dep’t of Navy, 444 F.3d 1349, 1354 (Fed. Cir. 

2006) (citing 5 C.F.R. § 1201.56). 

We see no error in the Board’s invocation of collateral 

estoppel in Lundberg II to bar Mr. Lundberg from relitigating the issue of the Board’s jurisdiction over his claims 

against the Air Force for improperly charging him annual 

leave in 2003, 2005, 2006, and 2010. Collateral estoppel 

is appropriate when: (1) the issue previously adjudicated 

is identical to the one now presented; (2) the issue was 

actually litigated in the prior case; (3) the previous determination was necessary to the resulting judgment; and 

(4) the party precluded was fully represented in the prior 

action. Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239 

(Fed. Cir. 1988). 

The AJ correctly applied these factors. The issue in 

Lundberg I and Lundberg II is identical—whether the 

Board has jurisdiction over Mr. Lundberg’s claims that 

the Air Force improperly charged annual leave. Mr. 

Lundberg litigated this issue before the Board in 

Lundberg I, but was unsuccessful as the Board decided 

that it lacked jurisdiction.2 Therefore, Mr. Lundberg was 

not entitled to a second, separate appeal to revisit that 

2 That Mr. Lundberg proceeded pro se in Lundberg 

I does not mean he was not fully represented in that 

action. See Flores v. Dep’t of Treasury, 25 F. App’x 868, 

871 (Fed. Cir. 2001) (citing Moss v. Dep’t of the Air Force, 

82 M.S.P.R. 309, 314, aff’d sub nom. 230 F.3d 1372 (Fed. 

Cir. 1999) (table decision)). 

 
LUNDBERG v. MSPB 5

previously-decided issue in Lundberg II.3 See, e.g., Colodney v. Dep’t of Health & Human Servs., 314 F. App’x 

312, 314–15 (Fed. Cir. 2008) (affirming AJ’s application of 

collateral estoppel to preclude appellant from relitigating 

issue of Board’s jurisdiction).

Finally, we have considered and liberally construed 

all of Mr. Lundberg’s arguments as to why the Board 

erred in applying collateral estoppel. We find none of 

them persuasive.

CONCLUSION

For the foregoing reasons, the decision of the Board is 

affirmed. 

COSTS

No costs.

3 As we mentioned above, the alleged conduct in 

Lundberg I differs in one sense from the alleged conduct 

in Lundberg II because the latter added incidents of 

improper charging of annual leave in 2005 and 2006. See

supra n.1. These additions, however, neither affect our 

ruling nor require remand for additional fact finding. Mr. 

Lundberg has not appealed Lundberg II on the basis that 

the alleged conduct in Lundberg I and Lundberg II were 

not identical. See, e.g., Miller v. Dep’t of Army, 987 F.2d 

1552, 1554 n.3 (Fed. Cir. 1993) (declining to decide 

whether Board erred on an issue when the appeal did not 

challenge the Board’s decision on the issue). That choice 

is understandable given that the legal issue at stake is 

identical across all the contested annual leave charges.