Before Mayer, Chief Judge, Newman and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
James V. Mazzarella seeks review of two Merit Systems Protection Board ("Board") decisions, one that denies a petition of enforcement *fn1 and one that dismisses a petition of enforcement. *fn2 We affirm both decisions of the Board.
On February 22, 1991, based on charges that he violated Postal Service standards of conduct during an incident that occurred on December 22, 1990, the Postal Service removed Mr. Mazzarella from his employment. In response to this action, he pursued a grievance pursuant to the applicable collective bargaining agreement. He also filed a complaint of discrimination with the agency. On April 23, 1991, an arbitrator ruled against Mr. Mazzarella, sustaining the removal. Ruling on his complaint, the agency, on February 26, 1992, found no discrimination.
Mr. Mazzarella timely appealed the February 26, 1992 decision to the Board. On June 19, 1992 the administrative Judge, in an initial decision, mitigated his removal to a 30-day suspension and ordered the agency to provide interim relief pursuant to Section 6 of the Whistleblower Protection Act of 1989, 5 U.S.C. '7701(b)(2)(A). The agency filed a timely petition for review of this initial decision.
As part of its petition for review and in accordance with 5 C.F.R. '1201.115(b), the agency submitted evidence of its compliance with the interim relief order. Specifically, the agency submitted proof that although it had placed Mr. Mazzarella on administrative leave, he would be in full paid status during the pendency of the petition for review. In spite of a challenge by Mr. Mazzarella that this agency submission was "irrelevant and immaterial," the Board, in its decision on the agency petition, noted that Mr. Mazzarella had not otherwise contested the adequacy of the interim relief and found that the agency was in compliance with the administrative Judge's order. Mazzarella v. United States Postal Serv., 56 M.S.P.R. 47, 50 n.2 (1992). On December 2, 1992, the Board granted the agency petition, reversed the initial decision, and sustained the removal. Id. at 49.
Seeking de novo review of his discrimination claims, Mr. Mazzarella filed an action in the United States District Court for the District of Massachusetts. In March 1994 the District Court granted summary judgment in favor of the Postal Service. Mazzarella v. United States Postal Serv., 849 F. Supp. 89 (D. Mass. 1994). Mr. Mazzarella also sought review of the Board's decision in this court. However, because of the pending district court action, we dismissed his petition for review. Mazzarella v. United States Postal Serv., 1 F.3d 1251 (Fed. Cir. 1993) (Table).
In November 1997, Mr. Mazzarella filed two petitions for enforcement with the Board, both relating to his removal. In separate decisions, the Board denied one of these petitions and dismissed the other--the C-1 case and the C-2 case respectively. Mr. Mazzarella now appeals.
We review a decision of the Board under the standard set forth in 5 U.S.C. '7703(c). We affirm a Board decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed. Cir. 1995).
In the C-1 case, Mr. Mazzarella petitioned to enforce the June 19, 1992 initial decision that mitigated his removal to a 30-day suspension. Because the regulations only authorize petitions for enforcement of "final," rather than "initial" decisions, the Board denied his petition. On appeal, Mr. Mazzarella challenges this Board decision.
The decision that Mr. Mazzarella seeks to enforce was overturned by the full Board, acting upon a timely petition for review by the agency. When the Board reversed the June 19, 1992 initial decision and sustained the agency's removal action, Mazzarella, 56 M.S.P.R. at 49, that decision became the "final" decision of the Board. See 5 C.F.R. '1201.113(c) (1992). Accordingly, there was no favorable decision for Mr. Mazzarella to seek to enforce.
In the C-2 case, Mr. Mazzarella filed a petition for enforcement contending that, following the June 1992 initial decision, the agency had afforded him inadequate interim relief. The Board dismissed this petition, ruling that the claim was barred under any of the following doctrines: res judicata, collateral estoppel, or the "law of the case." On appeal, Mr. Mazzarella challenges this Conclusion.
We agree with the Board that the doctrine of res judicata bars Mr. Mazzarella's claim in the C-2 case. The doctrine of res judicata applies when there has been a final judgment on the merits, when a subsequent case involves the same parties or their privies, and the subsequent case involves the same cause of action. See Allen v. McCurry, 449 U.S. 90, 94 (1980); McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193, 1197-98 (Fed. Cir. 1993). In particular, the doctrine of res judicata precludes parties from litigating issues that were or should have been raised in a prior final judgment on the merits. Allen, 449 U.S. at 94. In its petition for review of the June 1992 initial decision, the Postal Service submitted evidence that it had complied with the award of interim relief. No challenge was raised to this aspect, which was a fundamental part of the disputed relationships. Mr. Mazzarella argued that the agency submission was "irrelevant and immaterial." He did not contest ...