## United States Court of Appeals for the Federal Circuit

03-3295,-3298

JOSEPH P. CARSON, Petitioner,

v. DEPARTMENT OF ENERGY, Respondent.

Robert C. Seldon , Robert C. Seldon & Associates , P.C., of Washington, DC, argued for petitioner. Kyle E. Chadwick , Attorney, Commercial Litigati on Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Bryant G. Snee , Assistant Director. Of counsel on the brief was Ivan A. Boatner , Attorney, Office of Chief Counsel, United Stat es Department of Energy, of Oak Ridge, Tennessee. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

03-3295, -3298 JOSEPH P. CARSON, Petitioner,

v. DEPARTMENT OF ENERGY, Respondent.

______________________ DECIDED: March 1, 2005

______________________ Before MICHEL, Chief Judge * , NEWMAN and BRYSON, Circuit Judges

. Opinion for the court filed by Chief Judge MICHEL. Dissenting opinion filed by Circuit Judge NEWMAN. MICHEL, Chief Judge

. Joseph P. Carson appeals two final decisio ns of the Merit Systems Protection Board (“Board”), namely, (1 ) the May 29, 2002 decision 1 denying his petition for enforcement of the Board’s fina l decision in his first Indivi dual Right of Action (“IRA”) appeal in Carson v. Department of Energy , Nos. AT-1221-96-09 48-W-3, AT-1221-98- 250-W-1, AT-1221-98-623- W-1 (Apr. 29, 1999) (“ Carson I ”), and (2) the February 27,

* Paul R. Michel assumed the posit ion of Chief Judge on December 25, 2004.

1 This decision, Nos. AT-1221-98 -0250-C-5, AT-1221-98-623-C-5, AT-1221-96- 0948-C-5, became final on July 7, 2003, when the Board denied Carson’s petition for review. See 5 C.F.R. § 1201.113(b).2002 d e cis i on d i smiss i ng h i s sec ond IRA fo r failing to prove retaliatory animus. 2 B o t h the present enforcement and IRA proceedings conc erned th e Department of Energy’s (“Agency”) alleged failure to mak e Carson’s November 2000 reas signment t o the Oak Ridge Operations Office (“ORO”) retroactiv e to September 1999 as part of the relief granted in Carson I , as well as the resulting failure to consider him for several GS-14 and GS-15 positions at ORO between Nove mber 1999 and March 2000. We heard or al argument on October 4, 2004. We hold that the Board did not abuse its discretion in denying Carson’s present enforce ment petition as precluded by his prior enforcement petition, finally dismis sed in Car s on v. Department of Energy , 88 M.S.P.R. 260 (2001) (“ Carson II ”), or in dismissing Carson’s present IRA appeal for failure to show Agenc y retaliation. We therefore affirm. BACKGROUND Carson had been em ployed as a General Engineer, GS-14, als o referred to as an “EH Resident,” at the Office of Envir onment, Safety and Heal th (“EH”) in the Department of Energy ’s facility in Oak Ridge , Tennessee. Carson’s professional duties entailed oc cupational and nuc le ar safety oversight. Between 1991 and 1997, Carson made more than twenty disc losur e s of spec ific dangers to public safety and health. Th e Agency, in turn, (1) gave Carson an “exc eeds fully successful” rather than an “outstanding” rating in 1995, (2) removed hi s surveillanc e duties in mid-1997, and, finally, (3) reassigned him to EH Headquarte rs in Germantown, Maryland, effective December 1997.

2 This decision, No. AT-1221- 01-0025-W-2, became final on July 9, 2003, when the Board denied Carson’s petition for review. See 5 C.F.R. § 1201.113(b).
03-3295, -3298 2A. Carson’s First Individual Right of Action (Carson I) Carson challenged each of th ese personnel actions in separate IRA a p peals, filed between 1996 and 1998, alleging Agency r eprisal for his protected disclosures. 3 On April 29, 1999, the Administrative Judge (“AJ”) decided t hat the Agency had retaliated against Carson for making disc lo sures protected under the Whi s tleblower Protection Act (“WPA ”) and ordered interim relief pending poss i ble revie w by the full Board. As part of that relie f, the Agency was to “return to the appellant the full rang e of duties and work assignments consistent with his position description and past assignment s.” Carson was thus r eassigned to his former position as EH Resident at the EH facility in Oak Ridge. In July 1999, howev er, the Agency eliminat ed the entire EH Res i dent Progr a m. On August 31, 1999, Carson t hus wrot e ORO management that he was “open t o

ex ploring a detail to [ORO].” Cars on added: I’ve told my management that I w on’ t consi der a tra n sfer to O a k R i dge until the legal issues surrounding my employment in DOE are more resolved — specifically that the MSPB rules on DOE’s June Petition for Revie w (PFR) of Judge Miller’s initia l decision. DOE’s PF R is without legal merit, but giv e n the complexity of the case, it could well be next Summer before the B oard disposes of it. (Emphases added). 4 On September 9, 1999, EH inform ed Carson that according to ORO management, “an offer for you to join their staff would not be fort hcoming.” Instead, Carson would once again be transferred to EH Headquarters in Ge rmanto w n, Maryland

3 These three cases were joined for processing and hearing before the Board.

4 Carson closed by warning that “if vol untary approach to sharing interests and objectives in my being detailed to Oak Ridge doesn’t work . . . I can file an informal grievance, per DOE Order 3771. 1 chapter II section 3(b)” requesting such a detail.
03-3295, -3298 3the following summer. The Agency later modi fied the transfer, allowing Carson t o telecommute from his home in Knoxv i lle, Tennessee. On February 3, 2000, the AJ’s Initial Decision in Carson’s c onsolidated IRA appeals became final, when t he full Board denied the Agency’s petition for review. Carson v. Dep’t of Energy , 85 M.S.P.R. 171 (2000). On February 25, 2000, Carson applied fo r a vacant GS-15 position at ORO; Carson had previously, and uns u ccessfully , appl ied f o r two vac ant GS-15 positions at ORO in November 1999. The Notices of Vacancy for all three GS-15 positions specified t hat only c u rrent OR O em ployees were eligible to apply. 5 ORO denied Carson’s applic ation because he was employed at EH Headquarters in Maryland, no t ORO in Tennessee.
B. Carson’s First Action to Enforce Carson I (C arson II) On March 2, 2000, Carson wrote to ORO management requesting reassig n ment to a GS-14 (or higher) position there, and thr eatening t o petition f o r enforcement of the Board’s decision in Carson I if his request was denied. Carson made good on his thre at the very same day by filing a petition to enforce, alleging that his s e cond reas signment from Oak Ridge to Germantown constitut ed noncomplianc e with t he relief ordered in Carson I

. In an October 4, 2000 “Recommendation, ” the AJ granted Car s on’s petition, stating: Because the agency has failed to prove that it could not have plac ed the appellant in a position at his grade level wit hin the Oak Ridge, T ennessee,

5 In addition to the thr ee GS -15 positions at ORO, Carson also c o mplains of his nonselection for a GS-14, Supervisory Engi neer, position. T he date of Carson’s application for that position is, however, unclear.
03-3295, -3298 4commuting area, I fi nd that the agen cy is not in c o mplianc e with the Board’s F i nal Order. Since more than half of the similarly situated employees were placed within their commuting area, and the record reflects that there were vacant GS -14 positions to which the appellant might hav e been assigned, I find t hat directing the appellant’s reassignm ent to Germantown, Maryland, is not plac ing him “as nearly as possible” in the position he woul d have been in but for the unlawf u l retaliation. The AJ thus ordered the Agency to “identif y all GS-14 positions in the Oak Ridge, Tennesse e , commuting area which are currently vacan t or which were vaca nt and fille d on or after the date that the EH Resident program was abo lis hed,” and to assign Carson to the posit ion that most closely c o mplied wit h the Board’s order in Carson I . Accepting the AJ’s Recommendation, the Agency reassigned Carson to the position of Technic a l Facility Representative, GS-14, in a newly-formed organization within O R O. The reassignm ent became effectiv e as of November 2000. On April 26, 2001, the full Boar d dete rmined the Agency had satisfied the AJ’s Recommendation. Carson II , 88 M.S.P.R. at 260. The B oard explained that its prior decision in Carson I directed the agency to plac e the appellant in a pos ition with the f u ll range of duties and work assignments consis tent with his position des c ription and past assignments. While [ Carson I ] does not specifically require the appellant’s plac ement in his forme r position, it does contemplate placement in a position with the same duties and assignments as those of his former position of EH Site Residen t. . . . We find t hat the agency has demonstrated that overriding cir c umstanc es precluded it from placing the appellant in the same type of positi on that he had previously occupied because the entire EH Site Resi dent Program was abolished. Id. at ¶ 6 (internal citation omitted). Fi nding the range of duties and work assignments in Carson’s new pos ition at ORO “similar, though not precis ely the same, as his former responsibilities and as signments,” id. at ¶ 8, the Board concluded that the Agency had complied with Carson I and dismissed Carson’s petition for enforcement as moot.

03-3295, -3298 5The Board also rejec t ed Carson’s addit ional cla i m of noncompliance bas ed on his rejection for three GS-15 positions at OR O as “not appr opriately before the Board in this compliance proceeding.” Id . at ¶ 11. “ T he appellant hi mself stated that he filed an Individual Right of Action appe al with regard to three re jected applications for GS-15 positions. According l y, we will n o t consider the matter here.” Id. C. Carson’s Present Individual Right of Action On October 3, 2000, Carson filed a second IRA, 6 alleging that the Agency’s failure to transfer him to ORO effective in September 1999 and its s ubsequent failure to consider and/or selec t him for any one of the three GS-15 positions at ORO for which he applied in Nov e mber 19 99 and F ebruary 2000 consti tuted reprisal for his whistleblowing activity. On February 27, 2002, the AJ dismiss ed the second IRA appeal as Carson failed to prove that “the reason he wa s not transferred to ORO sooner was in retaliation for his whistleblowing.” The AJ expl ained that “the organi zation that failed to reassign him was not the organization that took retaliatory action against him. At best, the appellan t demonstrated that there was a lack of co mmunication between himself and ORO.” Having found no retaliatory mo tive, the AJ declined to furt her address Carson’s resulting nonselection for the three GS-15 positions at ORO. The AJ did note, however, that Carson was not entitled to prio rity consideration for GS-15 positions, as (1) he was not subject to a reduction in force, and (2) he could not invoke the transfer preference statute, 5 U.S.C. § 3 352. With respect to the latter, the AJ explained t hat “[t]he statute

6 The Boar d’s statement in Cars on II that Carson had “ f iled an Individual Right of Action appeal with regard to th ree rejected applications for GS-15 pos itions ” referred to this second IRA.
03-3295, -3298 6provides that a whistleblower is entitled to a transfer preference to positions of the ‘same status and tenure as t he position of such employee on the date of applying for a transfer . . . .’” Because Cars on “was attempting to obtain a promotion by invoking that statute, his claim [was] unavailing. ”
D. Carson’s Present Action to Enforce Carson I On March 23, 2002, Carson filed a second petition to enforce Carson I , this time claiming the Agency unlawfully failed to cons ider his application for two GS-14 position s at ORO. 7 The AJ denied Carson’s petition on May 29, 2002, explaining t hat (1) the Board’s final order in Carson I did not require the Agency to consider Carson’s application for any particular position; and (2) the Board’s F i nal Order in Carson I I , Carson’s first enforcement action, f ound the Agency fully in com p liance wit h Carson I

. The Initial Decisions in Carson’s pr esent enforcement and IRA proceedings became final on July 7 and July 9, 2003, res pectively . Carson timely appealed both final decis ions to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSI ON The Board’s dec ision must be affirmed unless it is found t o be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by la w, rule or regulation; or unsupported by s ubstantial evidenc e. 5 U.S.C. § 7703(c) (2000); Carreon v. Office of Pers. Mgmt. , 321 F.3d 1128, 1130 (Fed. Cir. 2003).

7 According to the Initial De cis i on, Carson’s claim was based on nonselection for “two different GS-14 positions.” However, the dates Carson app lied for these GS-14 vacancies, as well as the titles of those positions, are not in t he record before us.
03-3295, -3298 7I. Petition to Enforce Carson argues that the Board erred in refusing to consider his claims for retroactive reassignment to ORO and the resulting nonselection for several vacant positions there as part of hi s second petition to enforce Carson I . Carson insists that these nonc omplianc e claims are not precluded by the Board’s F i nal Order in Carson II , as the prec ise iss ues — the Agency’s failur e to make his Novem ber 2000 reassignment to ORO retroactive to September 1999 and his ens uing nonc onsideration for ORO vacancies — were not before the Board in that first enforcement proceeding. Accordingly, Carson asks that his reassi gnment to ORO now be made retroactive to September 1999 and that he now receiv e pr iority consideratio n for the three GS-15 positions and one GS-14 positio n at ORO for which he was not considered in 1999 and 2000. Carson also asks us to remand so that the Board can determine whether he would hav e been selected for any of the pos itions at ORO for which he applied in November 1999 and F ebruary 2000. The gover nment responds that Carson’ s challenges to the scope of relief afforded by Carson I should have been r a ised in a n appeal to this c ourt from that decision, which became final in February 2000. Alternatively, t he gov ernment argues, Carson should hav e raised thes e instances of alleged noncompliance in his first petition to enforce. As such, the gov ernment ass e rt s that Carson’s c l aims are untimely and precluded by res judicata. We agree with the government that the noncomplianc e claims rais ed in Cars on’s second enf orcement action are barred by Carson II . Claim preclusion prevents parties from litigating issues that could ha ve been raised in a prior action. See Federated D e p’ t

03-3295, -3298 8Stores, Inc. v. Moitie , 452 U.S. 394, 398 ( 1981); see also Pear tree v. United States Postal Ser v

. , 66 M.S.P.R. 332, 337 (1995)

. 8 The doctrine serves to “relieve parties of the cost and vexation of multiple lawsuits , conserve judicial resources, and, by preventing incons istent decis ions, enc ourage reliance on adjudication.” Alle n v. McCurry , 449 U.S. 90, 94 (1980). This form of 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 the merits; and (3) the same cause of action and the same parties or their privie s were inv o lved in bo th cases. Peartree , 66 M.S.P.R. at 337. Here, all three criteria are satisfied. Carson II was a final decision, rendered by the full Bo ard, which found the Agency in complianc e with the remedial ac tions presc r ibed by Carson I . In other words, Carson II determined that Carson’s new position at ORO — effective November 2000 — entailed duties su fficiently similar to those of his prior EH position t o

8 Carson’s argument that res judi cata does not apply speaks to issue preclusion rather than claim prec lusion. Unlike issue preclusion, which only bars matters actually litigated in a prior proceeding , claim preclusion forecloses matters that, although never litigated or even raised, could have been advanced in an earlier sui t. As the United States Supreme Cour t has explained, [t]he preclusive effects of former adjudication . . . are r e ferred to collectiv ely by most commentators as the doctrine of “res judicata.” Res judicata is o ften analyzed further to consist of two preclusion concepts: “issue prec lusion” and “claim preclusion.” Issue preclusion refe rs to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decide d . This effect is also re ferred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim prec lusion therefore encompasses the law of merger and bar. Migra v. Warren City Sch. Dist. Bd. of Ed. , 465 U.S. 75, 77 n.1 (1984) (internal citations omitted).
03-3295, -3298 9place him “as nearly as possible” in the position he would hav e been in but for the Agency’s retaliation. Both Carso n II and the decision on his sec ond enf orcement petition now before us involv ed allegations of Agenc y noncomplianc e with Carson I . Surely, Car s on could have rais ed the retroactive reas signment a nd nonselection claim s before the Board in his first enforcement proceeding. Indeed, in that action, t he AJ directed Carson to identify all new allegations of noncomplianc e, if any, other than his second t r ansfer to EH Headquarters. The AJ’s order was dated August 23, 2000. 9 As of that date, Carson had already applied and been r e ject ed for the vacant GS-14 and GS-15 positions at ORO based on his non-incumbent status. Carson t hus could — and should — hav e properly r a ised thos e nonc om pliance allegations before the AJ in t he original enforcement action. He did not. And, al though Cars on attempted to raise his rejection for several GS-15 positions bef ore the full Board in Carson II , the Board properly declined to review that claim as not adjudicat ed by the AJ, or, as the Board put it, “not appropriately before [it].” See, e.g. , Banks v. Dep’t of the Air Force , 4 M.S.P.R. 268, 271 (1980) (the Board will not consi der an argument raised for the first time in a petition for review absent a showing that it is bas ed on new and material evidence not previously available d e spite the party's due dilig ence). In sum, the Board’s u nappealed Final Order in Carson II — that the Agency had complied with the full scope of relief acc o rded Car s on in his or iginal IRA appeal —

9 As the AJ’s October 4, 2000 Recomme ndation not ed, “[o]n September 21, 2000, the appellant filed a motion to supplement the record , in which he att e mpted to raise a new allegation of noncom pliance.” Denying that motion, the AJ reasoned tha t “[t]he purpose behind [the] Augu st 23, 2000 Order directing t he appellant to identify all of his addit i onal allegations of noncomplianc e, if any, was prec isely to avoid t h is type of piecemeal litigation.”
03-3295, -3298 10precludes all claims of noncompliance t hat could have been raised in his origin al enforcement action. Stated different ly, by failing to raise them in Carson II , Carson waived his present claims. Although we hold Carson’s belated nonc omplianc e claims precluded, we note that they would hav e failed in any event

. Carson I did not provide for retroactive reassignm ent. Instead, the Agency was simply required to, among other things, “return the appellant to the full range of duties and work assignments consistent with his position description and past as signments.” Similarly , the AJ’s Recommen dation on Carson’s initial petition to enf orce simply ordered that the Agency “assign the appellant to the position so identified [a GS-14 posit ion in the Oak Ridge commuting area] that most closely complies with the Board’s February 3, 2000 Fina l Order.” Neither decision mentioned retroactivity; neit her specified ORO as the pl ace of reassignment. While retroactive reassignm ent to OR O may now appear preferable to Ca rson, he failed to properly request such a remedy. Carson c annot use successive enf orcement petitions to expand t he scope of relief afforded by the Board’s fin a l dec ision in Carson I . As the AJ remarked, these proceedings are desi gned “to protect an appel lant from being deprived of Board-ordered relief ” rather than referee “every real or perceived grievanc e between the employee and the agen cy for years to come.” Accordingly, we conclude that the Boar d did not abuse its di scretion or otherwise err when it denied Carson’s se cond petition for enforcement.
II. Individual Right of Action We now turn to the Board’s dis m issa l of Carson’s s e cond IRA appeal. Here, Carson faults the Board for focusing on the absence of Agency reprisal rather than on

03-3295, -3298 11questions of compliance. Cars on argues t hat the Board erred in r equiring that he show retaliatory animus in the Agency ’ s failure to retroactively reassign and treat him as an ORO incumbent for the various GS-15 vacanc ies, all filled sev e ral years ago. The proper inquiry, Carson claims, should ha ve considered whether the A g ency was required to treat him as an ORO employee as of Septem ber 1999 to comply with the AJ’s Recommendation and the Board’s Final Or der on his first peti t ion for enforcement. The government counters that the Boar d’s final — and unappealed — decision in Carson II precludes claims for a right to retroac tive reassignment raised in this second IRA appeal. The government point s out that the Board ruled in Carson II that the Agency had taken all the steps required by Carson I . Because the Agency had fully remedied the retaliatory acts at i ssue in Carson I , the AJ correctly required Carson to show new Agency retaliation in this second IRA appeal. We hold that the Board properly dismi ssed Carson’s second IRA for failing to prove Agency retaliat i on as a c ontributing fact or to the challenged personnel actions

. There is a critical difference bet ween a pe tition for e n forcement and a n I R A appeal. The first addresses Agency c o mpliance with a final Board order, while the second focuses on alleged Agency retaliation for pr otected disclos ures. The two types of proceedings are not interchangeable. On a petition t o enforce, the Agenc y bears the burden of proving compliance with a final Board order. See Spates v. U

. S. Postal Serv. , 70 M.S.P.R. 438, 441 (1996). Yet to prev ail in an IRA appeal alleging retaliation for protected disclos ures under the WPA, t he burden falls on the employee to show by a preponderance of the evidenc e that (1) a pr otected disclosure was made; and (2) the disclos ure was a cont ributing fac t or in the adverse personnel action. See 5 U.S.C. §

03-3295, -3298 121221(e)(1) (2005); 5 C. F.R. § 1209.7 (2005); see also Willis v. De p’t of Agric. , 141 F.3d 1139, 1143 (Fed. Cir. 1998). The AJ found the fir s t element met. Acknowledgin g that Car s on had made protected disclos ures bet ween 1991 and 1997, the AJ co ncluded that the “only remaining issues with respect to which th e appellant has the bur den of proof are to show that his whistleblowing was a contributi ng factor in the agency’s failure to assig n him to ORO in the fall of 1999, and its failur e to promote him.” The AJ thus focused on the second element of Carson’s whistleblo wer claim. After ca refully weigh i ng th e evidenc e Carson presented durin g the hearing on his claim, the AJ found that Carson had failed to show that he was not transfe rred to ORO retroactively due to Agenc y retaliation. In fact, Carson had m ade clear in his August 31, 1999 letter to ORO that he would not accept a permanent transfer to OR O “until the legal issues surrounding [his] employment in DOE [were] mo re resolved,” possibly in su mmer 2000. In v i ew of this communication, the AJ reasoned that “the appellant did not have any reason to believ e he would be transferred into ORO prior to his March 2000 request.” When Cars on did, in fact, convey an inte rest in reassignment to ORO in March 2000, he was informed of ORO’s policy of se lecting individuals fo r GS-14 and GS-15 positions s o lely from within its or ganization; a cr iterion for eligibilit y that was also c l early stated on the vacancy notices for those positions. To this end, ORO’s Huma n Resources Director testified that “competit ion was limit ed to ORO at the grade 14 and 15 levels due to the limited num ber of positions at those grades and the fact that ORO

03-3295, -3298 13employees should be given the first shot at competing for positions at those grade levels.” 10 In sum, C a rson’s transfer to ORO in Nov e mber 2000 rather than September 1999 was self-inflicted; his nons el ection, the result of a legi timate ORO policy. Neither was the product of retaliatory animus, as the AJ correctly found. Ce rtainly, substantial evidenc e s upports this finding. Hence, the AJ proper ly declined to consider Carson’s nonselection for ORO vacancies. CONCLUS ION For these reasons, both decis ions of the Board are
AFFIRMED

.

10 Carson did not argue bef ore the Board, and do es no t argue bef ore this court, that ORO’s policy of limiting the pool of app lications for GS-14 and GS-15 positions t o ORO employees was designed to exclude him from competition.
03-3295, -3298 1403-3295, -3298 1 

## United States Court of Appeals for the Federal Circuit

03-3295, -3298

JOSEPH P. CARSON, Petitioner,

v. DEPARTMENT OF ENERGY, Respondent.

NEWMAN, Circuit Judge , dissenting.

The issue is the extent to which a whistl eblower must be made whole in remediation of retaliatory actions that were taken against him. Is it sufficien t to return him to a position similar to the one he held thr ee or four years earlier -- bef ore the retaliation and its consequences -- or is he entitled to remedial action accommodating the lengthy period of litigation and its adverse effects on his employment status and advancement? My colleagues on this panel deny any remedial obli gation beyond reinstatement in a position similar to that previously held. Mr. Carson, after various whistleblowing events, had been retaliated against by being transferred from his employment at Oak Ridge, Tennessee, to the agency's offices at Germantown, Maryland. He was eventually reinstated at Oak Ridge, but had missed03-3295, -3298 2 several opportunities to compete for advanc ement at Oak Ridge. Thus Mr. Carson, although continually prevailing in extensive lit igation, was worse off than he would have been had he remained silent about the violations on which he blew the whistle. The question is whether he is entitled to a remedy that could come closer to making him whole, and if so, what remedy is appropriate. After the agency's initial retaliation by mo ving him from Oak Ridge to Germantown, Mr. Carson was obliged to litigate for over three years, in order to recover a position similar to the one he held when the retaliation began. The whistleblower law, and the policy underlying this law, require that the whistlebl ower be made whole, whic h in turn requires reasonable compensation by the agency for w hatever losses were suffered by the whistleblower. In compensation for the lo st opportunities for advancement, Mr. Carson asks no more than preferential consideration for future openings for which he is qualified, a remedy that the MSPB recognized in Baxter v. Office of Personnel Management , 44 M.S.P.R. 125, 133 (1990) (a remedy for failure to consider an applicant for past vacancies is to give priority consideration for future vacancies). Denial of any accommodation for this multi-year disadvantage is contrary to the pur poses of the whistleblow er protection law. Thus I must, respectfully, dissent from the ma jority's ruling that Mr. Carson is precluded from further relief.
A The three years of legal battles fought by Mr. Carson cannot be discerned from the majority opinion. Mr. Carson had been employed as a safety inspector in the Office of Environment, Safety, and Health at Oak Ridge. Over the years he reported multiple lapses in safety and waste in the nuclear weapons programs. On December 19, 1997 the agency03-3295, -3298 3 issued a letter of admonishment and reassi gned him to Germantown, Maryland. Mr. Carson, viewing the reassignment as retaliatory for his adverse disclosures, complained to the Office of Special Counsel. Upon inaction by the Special Counsel, he appealed to the Merit Systems Protection Board. On April 29, 1999 the adminis trative judge ruled that t he reports were protected under the Whistleblower Protection Act, and or dered the agency to cancel the letter of admonishment and return Mr. Carson to Oak Ridge and the full range of his previously assigned duties. The agency returned Mr. Carson to a different position at Oak Ridge, not reinstating him as a safety inspector. The agency also appealed the AJ's decision to the full Board. While that appeal was pending, the agency eliminated the Office of Environmental, Safety, and Health, and the resi dent safety inspection positions, including that previously encumbered by Mr. Carson, and again ordered the transfer of Mr. Carson to Germantown. After the full Board in F ebruary 2000 upheld the administrative judge's decision in favor of Mr. Carson, Carson v. Dep't of Energy , 85 M.S.P.R. 171 (2000), the agency offered him the choice of telecommuting to Germantown. Mr. Carson filed a Petition for Enforcem ent, and the administrative judge ruled on October 5, 2000 that he must be employed at Oak Ridge, not at Germantown. By then, almost three years had elapsed since he was fi rst disciplined for whistleblowing. The agency again appealed to the full Board, and meanwhile placed Mr. Carson in a position at Oak Ridge with duties that appear to be related to those of his prior position and at the same grade GS-14. The fu ll Board found that the agency was now in compliance. Carson v. Dep't of Energy , 88 M.S.P.R. 260 (2001). The Board ex plicitly declined to consider the03-3295, -3298 4 issue of Mr. Carson's missed opportunities to appl y for promotion, stati ng that this was the subject of a separate proceeding. The Board apparently was referring to a s eparate Individual-Right-of-Action appeal filed by Mr. Carson in October 2000, wherei n he stated that he was not made whole after the retaliation, because he had been deprived of t he opportunity to compete for certain GS14 and GS-15 positions at Oak Ridge. In t hat proceeding the admin istrative judge ruled that Mr. Carson did not meet his burden of pr oof, finding that the agency's decision not to consider Mr. Carson's applications for cert ain positions announced in September 1999 was not in retaliation for his past whistleblowing, but was because the positions were available only to incumbent employees of Oak Ridge Operations. Carson v. Dep't of Energy , No. AT1221010025W2 (M.S.P.B. July 9, 2003). This is the decision from which Mr. Carson now appeals. Mr. Carson recognizes that the positi ons for which he could not apply have been filled. His argument is that the loss of promotional opportunity was a direct result of the agency's retaliation, and therefore he is wors e off than he would have been but for the whistleblowing and its consequences. He asks for priority consideration for future positions for which he is qualified, stating that the intent of the Whistlebl ower Protection Act is that whistleblowers who suffer retaliation would be m ade whole. He points out that the statute was designed to overcome the widespread belief that "[u]nless you ar e in a position to retire or are independently wealthy, don't do it." Whistleblower Protection Act of 1987: Hearing on S. 508 Before the Senate Subcommittee on Federal Services, Post Office, and Civil Service, Committee on Governmental Affairs , 100th Cong. 4 (1987) (testimony of Sen. Levin).03-3295, -3298 5 The panel majority rules that Mr. Carson is not entitled to this remedy because on August 31, 1999 he wrote to a supervisor that he would not request transfer to the Oak Ridge Operations office until "the MSPB rules on DOE's June Petition for Review," and on September 8, 1999 a supervisor responded that Oak Ridge Operations would not offer him a position. In November 1999 Mr. Cars on applied for several announced positions including two at grade GS-15, and was told t hat those positions were open only to incumbent employees in the Oak Ridge Operations office. The panel majority holds that if Mr. Carson had requested earlier transfer to this office he could have been an incumbent and could have applied. Perhaps so. Howeve r, this does not support a ruling that Mr. Carson had chosen not to be consider ed for promotion. At most, it supports a ruling that he was still suffering the consequences of his whistleblowing. Mr. Carson had been out of t he promotion chain since late 1997, and was still confronting the agency's appeal of the administrat ive judge's decision in his favor, when he declined to take a step that he t hought would diminish his position on that appeal. His letter of August 31, 1999 cannot of itself sustain the loss of all opport unities for promotion. The remedy for retaliatory agency action is to plac e the whistleblowing em ployee as nearly as possible in the position he would have occupied if the retaliation had not occurred. 5 U.S.C. §1221(g)(1)(A)(i); Kerr v. Nat'l Endowment for the Arts , 726 F.2d 730, 733 (Fed. Cir. 1984). Reinstatement to the former position may or may not make the whistleblower whole; the specific circumst ances must be considered. Martin v. Dep't of Air Force , 184 F.3d 1366, 1372 (Fed. Cir. 1999). Mr. Carson states that the Board erroneous ly held that it wa s his burden "to show that his whistleblowing was a contributing fact or in the agency's failure to assign him to03-3295, -3298 6 ORO in the fall of 1999, and in its failure to prom ote him." Board op. at 6. I agree, for this was both an incorrect statement of the law and a misplacement of the burden of proof. The burden of proof of statutor y compliance is on the agency, not the wronged employee. See Briley v. Nat'l Archives & Records Admin. , 236 F.3d 1373 (Fed. Cir. 2001) ("If a plaintiff establishes a prima facie case of retaliation for whistleblowing, corrective action must be ordered unless 'the agency demonstrat es by clear and convincing evidence that it would have taken the same personnel action in t he absence of such disclosure.'") (relying inter alia on 5 U.S.C. §1221(e)(2)). Whet her or not the agency's failu re to assign him to Oak Ridge Operations in the 1999 action was in c ontinued retaliation, if the situation was a consequence of past retaliation then it warrants remedial action. Thus although the panel majority stresses that the agency cannot be f aulted for not having assigned Mr. Carson to the Operations office in 1999, the question is not one of fault, but of whether Mr. Carson, due to his whistleblowing, was disadvantaged in employment. The agency points to the difficulty of re constructing the competition for past positions, and stresses that Mr. Carson might not have been selected for the 1999 promotion. I agree that it may not be easy to craft a remedy that would reasonably make Mr. Carson whole. However, it is in correct to foreclose all remedy when, prima facie , Mr. Carson experienced the specified lost opportunities spanning the entire period of retaliation and litigation. The burden of full complianc e is on the agency that retaliated, and doubts must be resolved in favor of the wronged employee. I would remand to the Board for determination, upon the correct law and placement of the burden of proof, the question of whether Mr. Carson lost prom otion opportunities and, if so , to fashion a remedy in reasonable fulfilment of the statute.03-3295, -3298 7 B My colleagues also hold that Mr. Carson is barred from raising this issue by res judicata . However, this aspect was not previously decided. The Board expressly reserved the question of lost opportuniti es, stating that "the appellant 's additional claim that the agency is in noncompliance because it rejected his application for GS-15 positions is not appropriately before the Board in this compliance proceeding." Carson , 88 M.S.P.R. at 264-65. Thus, this claim was properly before the Board, and the appeal is properly before

us.