Renville v. Hhs , 632 F. App'x 611 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GRADY W. RENVILLE,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2015-3193
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-14-0309-I-1.
______________________
Decided: November 9, 2015
______________________
GRADY W. RENVILLE, Albuquerque, NM, pro se.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, DOUGLAS K.
MICKLE; JAMES M. CRIBARI, Office of General Counsel,
United States Department of Health and Human Ser-
vices.
______________________
2 RENVILLE v. HHS
Before LOURIE, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
Mr. Renville appeals a final decision of the Merit Sys-
tems Protection Board (“Board”). Because the Board
properly dismissed Mr. Renville’s claims, we affirm.
BACKGROUND
I.
Mr. Renville worked as a Community Health Director
for the Indian Health Service, an operating division
within the U.S. Department of Health and Human Ser-
vices (“HHS”). In October 1996, HHS suspended
Mr. Renville for forty days for misuse of a government
vehicle, misuse of official time, and demonstrating behav-
ior unbecoming of a government official. The following
month, Mr. Renville timely appealed his suspension to the
Board. In January 1997, HHS removed Mr. Renville from
his position and from the Federal service altogether.
HHS claimed Mr. Renville failed to adequately perform
the budgetary duties of the Community Health Director.
Mr. Renville timely appealed again.
Before a hearing occurred, Mr. Renville and HHS set-
tled their dispute. Under the settlement, Mr. Renville
agreed to voluntarily retire from the Federal service, to
not reapply for employment with the Indian Health
Service in the Aberdeen Area Office, and to withdraw his
appeals before the Board. In exchange, HHS issued
Mr. Renville back pay, eliminated the suspension and
removal actions from his record, provided him with a
letter of recommendation, and paid his attorney’s fees.
The Administrative Judge dismissed Mr. Renville’s
appeals after finding that the parties negotiated in good
faith, entered into the agreement freely, and understood
the terms by which they were bound. The dismissal order
RENVILLE v. HHS 3
indicated that, absent a petition for review, it would
become final on April 25, 1997. Neither party petitioned
for review, causing the dismissal order to become final.
II.
Seventeen years later in 2014, Mr. Renville filed a
new appeal with the Board challenging the same removal
action underlying the appeals he settled with HHS.
While raising many of the same arguments that he raised
in his earlier appeals, Mr. Renville also lodged several
new allegations, including that (1) his separation from the
Federal service violated the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (“USERRA”);
(2) his separation violated the Veterans Employment
Opportunities Act of 1998 (“VEOA”); and (3) his retire-
ment under the settlement agreement was involuntary.
The Board dismissed Mr. Renville’s appeal for lack of
jurisdiction. The Board determined that collateral estop-
pel precluded Mr. Renville from re-litigating the claims he
brought in his 1997 appeals and that res judicata pre-
cluded his USERRA claim. The Board also determined
that Mr. Renville could not properly bring a VEOA claim,
as that statute did not exist when he separated from the
Federal service. Finally, the Board determined that a
new appeal was not the proper mechanism to contest the
validity of the settlement agreement.
Mr. Renville timely appealed and we have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review decisions of the Board on a limited basis,
setting aside Board actions, findings, or conclusions only
if we find them 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). Whether the
4 RENVILLE v. HHS
Board had jurisdiction over Mr. Renville’s claims and
whether the Board properly precluded his claims are
questions of law that this court reviews de novo.
Whiteman v. Dep’t of Transp., 688 F.3d 1336, 1340
(Fed. Cir. 2012); Phillips/May Corp. v. United States,
524 F.3d 1264, 1268 (Fed. Cir. 2008).
We agree with the Board that Mr. Renville’s claims
regarding his separation are precluded by law, but we
believe the more fitting preclusion doctrine in this in-
stance is res judicata, rather than collateral estoppel as
applied by the Board. See, e.g., Ford-Clifton v. Dep’t of
Veterans Affairs, 661 F.3d 655, 660-61 (Fed. Cir. 2011)
(rejecting use of law of the case doctrine to afford a prior
settlement agreement preclusive effect and relying in-
stead on res judicata). Res judicata precludes a party
from asserting claims raised in an earlier action that
reached a decision when: “(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
privies were involved in both cases.” Carson v. Dep’t of
Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005); see also
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5
(1979).
The factors of this test are met here. It is undisputed
that the Board had jurisdiction over the 1997 appeals that
Mr. Renville filed regarding the suspension and removal
actions by HHS. Further, the settlement agreement and
the subsequent dismissal by the Board resulted in a final
decision on the merits. See Ford-Clifton, 661 F.3d at 660
(“It is widely agreed that an earlier dismissal based on a
settlement agreement constitutes a final judgment on the
merits in a res judicata analysis.”). Finally, Mr. Renville
raises the same cause of action—improper separation
from the Federal service—as he did in his 1997 appeals.
Therefore, we affirm the Board’s conclusion that
Mr. Renville was precluded from re-litigating his separa-
RENVILLE v. HHS 5
tion from the Federal service and, as a result, the Board
lacked jurisdiction to adjudicate those claims.
Mr. Renville’s claim under USERRA is also barred
under the doctrine of res judicata. Res judicata serves to
limit not only claims that a party actually raised, but also
claims that the party could have raised in an earlier
action arising from the same transaction or occurrence.
See Ammex, Inc. v. United States, 334 F.3d 1052, 1055
(Fed. Cir. 2003); see also Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (“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.”). Because Mr. Renville’s USERRA claim
relates to the same transactional facts—his separation
from the Federal service—which were resolved by the
settlement agreement, the Board was correct in dismiss-
ing the claim on res judicata grounds.
As for Mr. Renville’s VEOA claim, the timing of his
separation from the Federal service prevents him from
recovering under that statute. Congress enacted the
VEOA on October 31, 1998. Veterans Employment Op-
portunities Act of 1998, Pub. L. No. 105–339, 112 Stat.
3182. We have made it clear that the VEOA has no
retroactive effect. Lapuh v. Merit Sys. Prot. Bd., 284 F.3d
1277, 1282 (Fed. Cir. 2002) (holding that the VEOA “does
not confer jurisdiction on the Board to adjudicate claims
of violation of veterans’ preferences when the alleged
violative acts occurred before the effective date of the
Act”). As the events forming the basis of Mr. Renville’s
VEOA claim occurred at least eighteen months before
enactment of the VEOA, he has no VEOA claim to bring.
Therefore, we agree with the Board’s determination of no
jurisdiction.
Finally, Mr. Renville argues that his 1997 settlement
agreement with HHS is invalid because its terms are
6 RENVILLE v. HHS
contrary to law and because HHS induced him to enter it
using duress, undue influence, and fraud. The validity of
the 1997 settlement agreement is not properly before us.
The Administrative Judge who dismissed Mr. Renville’s
1997 appeals found that the parties had “freely accept[ed]
the terms of the agreement.” Attacks going to the validity
of settlements found by the Board to be voluntary may
only be brought through a petition for review of the Board
order entering the settlement. See Harris v. Dep’t of
Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998)
(“[T]he Board only entertains allegations that a settle-
ment agreement is invalid in a petition for review.”).
Thus, a new appeal filed seventeen years later, as
Mr. Renville filed here, is not the correct vehicle for
attacking the validity of his settlement agreement with
HHS.
CONCLUSION
For the reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.