Charles Mason v. Department of Defense ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES MASON, No. 19-72488
Petitioner,
v. MEMORANDUM*
DEPARTMENT OF DEFENSE; DEFENSE
COMMISSARY AGENCY,
Respondents.
On Petition for Review of an Order of the
Merit Systems Protection Board
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Charles Mason petitions pro se for review of the Merit Systems Protection
Board’s (“MSPB”) dismissal of his appeal in his individual right action alleging
violations of the Whistleblower Protection Act. We have jurisdiction under 5
U.S.C. § 7703(b)(1)(B). We will set aside the MSPB’s actions, findings, or
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conclusions only if they are “(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). We deny the petition.
The MSPB properly dismissed Mason’s appeal as barred by res judicata.
See Leon v. IDX Sys. Corp., 464 F.3d 951, 962 (9th Cir. 2006) (dismissal with
prejudice is a final judgment on the merits); Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (“Newly
articulated claims based on the same nucleus of facts may still be subject to a res
judicata finding if the claims could have been brought in the earlier action.”);
Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (elements of res
judicata); Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (“By obtaining [a
voluntary dismissal with prejudice], the plaintiff submits to a judgment that serves
to bar his claims forever[.]”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The MSPB’s untimely motion for leave to intervene (Docket Entry No. 11)
is denied as unnecessary.
PETITION DENIED.
2 19-72488