NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RICHARD ANTHONY WYEROSKI, 

Petitioner, 

v. 

DEPARTMENT OF TRANSPORTATION, 

Respondent. 

__________________________ 

2011-3227 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. NY1221110059-W-1. 

_________________________ 

Decided: February 13, 2012 

_________________________ 

RICHARD A. WYEROSKI, of Bayport, New York, pro se. 

SARAH A. MURRAY, Trial Attorney, Commercial Litigation Branch, Civil Division, United State Department of 

Justice, of Washington, DC, for respondent. With her on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and DONALD E. KINNER, 

Assistant Director. 

__________________________ 
WYEROSKI v. TRANSPORTATION 2

Before PROST, SCHALL, and REYNA, Circuit Judges. 

PER CURIAM. 

DECISION

Richard A. Wyeroski petitions for review of the final 

decision of the Merit Systems Protection Board (“Board”) 

that (1) dismissed his appeal as barred by the doctrine of 

res judicata and (2) denied his request to reopen his 2002 

appeal of his removal by the Department of Transportation, Federal Aviation Administration (“FAA” or 

“agency”). Wyeroski v. Dep’t of Transp., No. NY-1221-11-

0059-W-1 (M.S.P.B. Aug. 5, 2011) (“Final Decision”). We 

affirm. 

DISCUSSION

I. 

On December 4, 2002, Mr. Wyeroski timely appealed 

to the Board from the action of the FAA removing him 

from his position as a safety inspector. Subsequently, in 

June of 2003 following a three-day hearing, the administrative judge (“AJ”) to whom the appeal was assigned 

sustained the agency’s action and denied the appeal. See

Wyeroski v. Dep’t of Transp., No. NY-0752-03-0080-I-1 

(M.S.P.B. Jun. 3, 2003). On February 5, 2007, Mr. 

Wyeroski asked the Board to reopen the appeal regarding 

his removal. After the Board denied the request on the 

grounds, inter alia, that he had failed to come forward 

with newly discovered evidence justifying reopening, 

Wyeroski v. Dep’t of Transp., 106 M.S.P.R. 7 (2007), Mr. 

Wyeroski sought review from this court. We affirmed, 

concluding that, in denying the request to reopen, the 

Board had not abused its discretion. Wyeroski v. Merit 

Sys. Prot. Bd., 253 Fed. App’x. 950 (Fed. Cir. 2007). 
3 WYEROSKI v. TRANSPORTATION

Three years later, on December 3, 2010, Mr. Wyeroski 

filed an individual right of action (“IRA”) appeal with the 

Board after exhausting his administrative remedies with 

the Office of Special Counsel. On March 23, 2011, the AJ 

to whom the appeal was assigned dismissed the appeal on 

the grounds of res judicata. Wyeroski v. Dep’t of Transp., 

No. NY-1221-11-0059-W-1 (M.S.P.B. Mar. 23, 2011) 

(“Initial Decision”). The Initial Decision became the final 

decision of the Board on August 5, 2011, after the Board 

denied Mr. Wyeroski’s petition for review for failure to 

meet the criteria for review set forth at 5 C.F.R. § 

1201.115(d). Final Decision at 3. At the same time, the 

Board denied Mr. Wyeroski’s concurrent request to reopen 

his original 2002 appeal based upon newly discovered 

evidence. Id. at 3-4. This petition for review followed. 

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

II. 

Our scope of review in an appeal from a decision of 

the Board is limited. Specifically, we must affirm the 

Board’s decision unless we find it to be (1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence. 5 U.S.C. § 

7703(c); Kewley v. Dep’t of Health & Human Servs., 153 

F.3d 1357, 1361 (Fed. Cir. 1998). Mr. Wyeroski raises two 

arguments on appeal. We address them in turn. 

A. 

Mr. Wyeroski’s first argument is that the Board erred 

in ruling that his IRA appeal was barred by the doctrine 

of res judicata. In making this argument, however, Mr. 

Wyeroski cites no authority; he simply asserts that res

judicata does not apply. 
WYEROSKI v. TRANSPORTATION 4

The thrust of Mr. Wyeroski’s IRA appeal was that 

when the FAA removed him from his position in 2002, it 

did so in retaliation for protected whistleblowing activity. 

In the Initial Decision, the AJ ruled that the appeal was 

barred by res judicata based upon the 2002 appeal. In his 

decision, the AJ relied upon Ryan v. Dep’t of the Air Force, 

113 M.S.P.R. 27 (2009). There, the Board cited to Sabersky v. Dep’t of Justice, 91 M.S.P.R. 210 (2002), aff’d 61 

Fed. Appx. 676 (Fed. Cir. 2003), which held that an employee who appeals his removal directly to the Board is 

barred by res judicata from bringing an IRA challenging 

the same removal because the whistleblowing claim could 

have been raised before the Board in the original appeal. 

We see no error in the AJ’s ruling dismissing Mr. 

Wyeroski’s appeal on the ground of res judicata. The AJ’s 

ruling is in line with Ryan and Sabersky, which are fully 

consistent with settled law. See Spears v. Merit Sys. Prot. 

Bd., 766 F.2d 520, 523 (Fed. Cir. 1985) (holding that an 

employee who initially challenged removal on grounds 

other than discrimination was barred by res judicata from 

later challenging removal on discrimination grounds). 

B. 

Mr. Wyeroski’s second argument is that the Board 

erred in denying his request to reopen his 2002 removal 

appeal based upon what he alleges is new and material 

evidence. Pursuant to 5 C.F.R. § 1201.115(d), the Board 

may grant a petition for review when “[n]ew and material 

evidence is available that, despite due diligence, was not 

available when the record closed.” Mr. Wyeroski states 

that the new evidence he has proves that “the FAA attorney lied in court[,] mislead [sic] the [AJ,] and committed 

fraud upon the court.” Appellant Br. at ¶ 6. He further 

states that the new evidence shows that the FAA attorney “did not act properly and confused the [AJ].” Id. 
5 WYEROSKI v. TRANSPORTATION

In denying Mr. Wyeroski’s request to reopen, the 

Board noted that its authority to reopen “is generally 

limited by the requirement that such authority be exercised within a reasonably short period of time, which is 

measured in weeks, not months or years.” Final Decision

at 3 (citing McNeel v. Office of Pers. Mgmt., 113 M.S.P.R. 

356, ¶ 16 (2010); Arenal v. Office of Pers. Mgmt., 106 

M.S.P.R. 272, ¶ 10 (2007), aff’d, 264 F. App’x 891 (Fed. 

Cir. 2008)). The Board also noted, however, that it could 

reopen a final decision after a longer interval of time 

“where the earlier decision was obtained by fraud, concealment, or misrepresentation by a party.” Id. (citing

Hosey v. Interstate Commerce Comm'n, 81 M.S.P.R. 122, 

¶8 (1999)). The Board determined that, because Mr. 

Wyeroski was seeking to reopen his removal appeal seven 

years after it had been decided and because there was no 

evidence of fraud, the request was to be denied. Id. at 3-4. 

Having reviewed the record before us, we are satisfied 

that the Board did not err in denying Mr. Wyeroski’s 

request to reopen his 2002 removal appeal. Mr. Wyeroski 

has failed to demonstrate that the new evidence that he 

has proffered was not previously available to him, let 

alone that it was not available to him until long after his 

original appeal. In addition, the new evidence fails to 

demonstrate that the agency committed fraud when 

applying its policy at the time of Mr. Wyeroski’s removal. 

As the Board noted, “[a] subsequent change in policy does 

not demonstrate that the agency acted fraudulently in 

applying then-current policy.” Id. at 3. 

For the foregoing reasons, the Final Decision is affirmed. 

Each party shall bear its own costs. 

AFFIRMED