835 F. 2d 871 - Ivory Mitchell v. Department of Education

The final decision of the Merit Systems Protection Board (board), docket No. CH07528610391, dismissing the appeal of Ivory D. Mitchell (Mitchell) on the basis of res judicata, is affirmed.

In his first appeal, Mitchell challenged his removal for unacceptable performance, and the removal was upheld by this court. Mitchell v. Department of Education, No. 85-1906 (Fed.Cir. Dec. 13, 1985). In his second appeal, Mitchell challenges the same removal, alleging discrimination on the basis of race, sex, and age.

During oral argument, Mitchell contended this court did not have jurisdiction over the first appeal and that the first decision should be vacated. We disagree. The previous appeal was not a mixed case.

The board properly dismissed the appeal on the ground that res judicata barred the second appeal. This court resolved that issue in Spears v. Merit Systems Protection Board, 766 F.2d 520 (Fed.Cir.1985), holding that the statute did not permit the board to review an adverse action without considering allegations of discrimination, and then later to accept another appeal on the same adverse action to consider the discrimination issue. While Mitchell may be able to challenge the agency's failure to decide the discrimination complaint, the board is not the proper forum in which to do so.