Before Rader, Circuit Judge, Friedman, and Archer, Senior Circuit
Eddie Irizarry appeals the Merit System Protection Board's (Board's) February 4, 1999 decision, Docket No. NY-1221-98-0230-W-1, dismissing his claim as barred by the doctrine of res judicata. Because the Board properly applied claim preclusion, this court affirms.
Effective December 31, 1993, the Department of the Navy removed Mr. Irizarry from his position as a police officer due to his inattention to duty, disrespectful conduct, and failure to follow instructions. The three charges all arose from two incidents. On August 31, 1993, while assigned to duty at a gate to the base, Mr. Irizarry lowered a vehicle control arm onto another police officer's sedan damaging its roof. On October 3, 1993, he instigated a heated argument involving profanity with his supervisor and subsequently refused to surrender his weapon as ordered.
Mr. Irizarry appealed his removal, alleging that the Navy discriminated against him on the basis of his national origin, retaliated against him for filing a prohibited personnel practice complaint with the Special Counsel, retaliated against him for his union activity, and committed harmful procedural error in effecting his removal. On July 8, 1994, the Board made final its holding that the Navy proved each of the three charges against Mr. Irizarry.
Nearly four years later, on April 3, 1998, Mr. Irizarry filed another action with the Board, appealing his removal. In his second action, an individual right of action (IRA) appeal, Mr. Irizarry alleged that the Navy removed him in retaliation for his whistleblowing activity. The Board ordered Mr. Irizarry to demonstrate good cause - introducing evidence if necessary - why his IRA appeal should not be barred by claim preclusion. Mr. Irizarry responded simply by reiterating the evidence supporting his allegations in the original (July 8, 1994) case. On February 4, 1999, the Board dismissed the IRA appeal because the Board's prior decision precluded Mr. Irizarry's IRA appeal.
This court must sustain a decision of the Board unless it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).
The doctrine of claim preclusion prevents the same parties from litigating issues in a subsequent action that could have been raised in a prior action which resulted in a final judgment on the merits. See Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414-15 (1980). Claim preclusion reduces vexatious, multiple lawsuits, conserves judicial resources and prevents inconsistent decisions. See Faust v. United States, 101 F.3d 675 (Fed. Cir. 1996).
It is undisputed that the Board issued a final judgment on the merits of Mr. Irizarry's improper removal claim against the Navy in its July 8, 1994 decision. Mr. Irizarry did not appeal the decision to this court within the time allowed. He now argues that he attempted to raise his whistleblowing retaliation affirmative defense in the 1994 case, but that the administrative Judge ruled the issue inapplicable and prevented him from arguing it. However, the record indicates that Mr. Irizarry did have the opportunity to raise this defense in the 1994 case. Both parties agreed at the pre-hearing conference in the 1994 case that Mr. Irizarry was not alleging whistleblowing retaliation, even though he could do so. Nonetheless, if Mr. Irizarry believed the administrative Judge improperly prevented him from raising this affirmative defense, his proper course of action was to appeal the Board's ...