Detrich v. Department of the Navy , 463 F. App'x 934 ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
KARL R. DETRICH,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2011-3191
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF1221100980-W-1.
__________________________
Decided: February 14, 2012
___________________________
KARL R. DETRICH, Honolulu, Hawaii, pro se.
CHRISTOPHER L. KRAFCHEK, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice of Washington, DC, for respondent.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director.
__________________________
DETRICH v. NAVY 2
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Karl R. Detrich (“Detrich”) petitions for review of a fi-
nal order of the Merit Systems Protection Board
(“Board”), which dismissed Detrich’s individual right of
action (“IRA”) appeal as barred by res judicata. Detrich v.
Dep’t of the Navy (“Final Order”), No. SF-1221-10-0980-
W-1 (M.S.P.B. May 23, 2011). We affirm.
BACKGROUND
Detrich was removed from his position at the De-
partment of the Navy in 2004 based on eight charges of
misconduct. One of these charges was as follows:
Failure to follow instructions/inappropriate con-
duct – On 21 May 2004 you sent an email message
. . . to Mr. Jeffrey Wataoka, Director of Human
Resources Service Center (HRSC), Department of
Navy, Pacific. . . . In the email you made allega-
tions of abusive treatment by Management. This
was done counter to the e-mail policy you were
previously provided in writing . . . . I have also
cautioned you by e-mail regarding the inappropri-
ate remarks and accusations you continue to
make outside your chain-of-command . . . .
Pet’r’s App. 15. The Board sustained the removal as to
seven of the charges, including this charge of inappropri-
ate use of email, which was considered to be the most
serious charge. Detrich v. Dep’t of the Navy, 104 M.S.P.R.
126 (2006); see also Detrich v. Dep’t of the Navy, No. SF-
0752-04-0833-I-2, 2006 MSPB LEXIS 1612, at *28
(M.S.P.B. Apr. 12, 2006). The initial administrative judge
decision noted that the actual date of the email to Jeffrey
Wataoka was May 31, 2004, not May 21, 2004, but found
3 DETRICH v. NAVY
that the error was harmless. Detrich, 2006 MSPB LEXIS
1612, at *20 n.6.
This court affirmed, finding all seven charges to be
supported by substantial evidence. Detrich v. Dep’t of the
Navy, 251 F. App’x 679, 680-81 (Fed. Cir. 2007). We
noted that the date error in the inappropriate-use-of-
email charge was harmless. Id. at 680 n.1. However, we
noted that the result might have been different had
Detrich raised a defense under the Whistleblower Protec-
tion Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified
in scattered sections of 5 U.S.C.) (“WPA”):
We have substantial doubt as to the validity of
[the email] policy under the [WPA]. The WPA
does not permit an agency to discipline an em-
ployee for disclosing protected information merely
because that information has been reported out-
side the chain of command. An agency cannot re-
quire that protected disclosures be made only to
supervisory personnel. However, Detrich's coun-
sel confirmed at oral argument that Detrich did
not raise a WPA claim on appeal in this case.
Detrich, 251 F. App’x at 680-81 (citing Huffman v. Office
of Pers. Mgmt., 263 F.3d 1341, 1351 (Fed. Cir. 2001)).
In September 2010, Detrich filed an IRA appeal with
the Board, seeking a remedy for his 2004 removal under
the WPA. Detrich alleged that he was improperly re-
moved from his position for reporting agency abuses by
email to individuals other than his immediate supervisor.
The administrative judge directed Detrich to show cause
why the appeal should not be dismissed on grounds of res
judicata. Detrich argued that the error in date caused
him to not understand the charge, and that because the
misidentified email was not identified until Detrich was
being examined in the earlier hearing, he did not have the
DETRICH v. NAVY 4
opportunity to elicit testimony concerning this email,
which hindered his ability to make a WPA claim. The
administrative judge dismissed the appeal as barred by
res judicata, finding that Detrich could not challenge the
same removal action under a new legal theory. Detrich v.
Dep’t of the Navy, No. SF-1221-10-0908-W-1, slip op. at 6
(M.S.P.B. Nov. 29, 2010). The Board noted that the error
in dates had been determined to be harmless in the
earlier appeal, and agreed that Detrich could have raised
a WPA defense in the earlier action. Final Order, No. SF-
1221-10-0980-W-1, slip op. at 3. The Board denied
Detrich’s petition for review, making the decision of the
administrative judge the final decision of the Board. Id.
at 4.
Detrich timely petitioned for review. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
When reviewing Board decisions, we may only set
aside agency actions, findings, or conclusions that we find
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit Sys.
Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). Whether
a claim is barred by res judicata is a question of law
reviewed de novo. Phillips/May Corp. v. United States,
524 F.3d 1264, 1267 (Fed. Cir. 2008).
“Under the doctrine of res judicata (or claim preclu-
sion), ‘[a] final judgment on the merits of an action pre-
cludes the parties or their privies from relitigating issues
that were or could have been raised in that action.’”
Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.
Cir. 2003) (quoting Federated Dep’t Stores, Inc. v. Moitie,
5 DETRICH v. NAVY
452 U.S. 394, 398 (1981)). As long as the prior decision
was rendered by a court with competent jurisdiction, see
Gillig v. Nike, Inc., 602 F.3d 1354, 1361 (Fed. Cir. 2010),
res judicata applies when “(1) the parties are identical or
in privity; (2) the first suit proceeded to a final judgment
on the merits; and (3) the second claim is based on the
same set of transactional facts as the first.” Id. (citing
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5
(1979)); see Phillips/May, 524 F.3d at 1268.
It is uncontested that the earlier judgment against
Detrich involved identical parties and was in a court with
competent jurisdiction. The earlier case was also a final
judgment “on the merits” because it was based on the
parties’ substantive arguments at the time, rather than
dismissed on jurisdictional or other procedural grounds.
The only issue, then, is whether Detrich’s WPA claim
is based on the same set of transactional facts as the prior
case. Detrich argues that because of the typographic
error in the inappropriate-use-of-email charge, his present
claim is based on a different set of facts: “the set of facts
that only became available to the appellant after the error
in the charge was revealed.” Pet’r’s Br. 8. Newly discov-
ered facts relating to a previously litigated claim may on
rare occasions form the basis for a new claim, such as in
the case of negligent misrepresentation by the other
party. See Restatement (Second) of Judgments § 26 cmt. j
(1982). Here, however, the error was discovered during
the prior case, and the error was found to be harmless.
See Detrich, 251 F. App’x at 680 n.1. Although Detrich
argues that this error was not harmless because it pre-
vented him from questioning witnesses about the email,
this issue cannot be relitigated now. Detrich’s WPA claim
is thus “based on the same, or nearly the same factual
allegations” as the prior case—namely, the email he sent
on May 31, 2004—which is sufficient to satisfy the “same
DETRICH v. NAVY 6
set of transactional facts” element. Ammex, 334 F.3d at
1056. Detrich’s claim is barred by res judicata.
For the foregoing reasons, we affirm the decision of
the Board.
COSTS
No costs.