George E. Kincade v. Department of the Treasury

NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2006-3342
GEORGE E. KINCADE,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
George E. Kincade, of Bridgeport, Connecticut, pro se.
Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Deborah A. Bynum, Assistant Director.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3342
GEORGE E. KINCADE,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
DECIDED: March 28, 2007
__________________________
Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.
NEWMAN, Circuit Judge.
George E. Kincade, appearing pro se, appeals the decision of the Merit Systems
Protection Board dismissing the appeal of his removal from employment by the Internal
Revenue Service (IRS). The Board held that since the IRS had subsequently cancelled
the removal, and the United States District Court for the District of Connecticut resolved his

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2006-3342 2
discrimination and retaliation claims, his appeal to the Board was moot.1 We agree that the
issues on appeal are now moot, and discern no legal, factual or procedural error in the
Board's decision, which is affirmed.
BACKGROUND
Mr. Kincade was employed as a GS-09 Revenue Officer in the Norwalk, Connecticut
office. He states that he experienced various performance issues, that he had a
contentious relationship with his supervisors, and that he suffered health problems. The
IRS approved his request for extended leave in light of the health problems, and in August
1999 he was placed in Leave Without Pay status. On September 20, 2000, during his
LWOP status, Mr. Kincade filed suit in the United States District Court for the District of
Connecticut alleging, inter alia, racial discrimination and retaliation, and seeking relief
including damages.
By letter dated November 29, 2000, the agency proposed to remove Mr. Kincade
from service, based on his unavailability for work since May 1999 for medical reasons. Mr.
Kincade responded, stating that his absence from work was due to illness caused by a
stressful work environment including the racial discrimination that he experienced. He
explained that he would only return to work with his doctor's permission, and charged that
the proposed removal was an additional discriminatory insult by the IRS.
1 Kincade v. Department of the Treasury, No. BN0752010143-I-3 (M.S.P.B.
Feb. 22, 2006).

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2006-3342 3
Mr. Kincade pursued his claims of discrimination, retaliation, and emotional stress in
several forums, including the Equal Employment Opportunity Commission, the Board, and
federal district court. On March 30, 2001 he filed suit in the United States District Court for
the District of Connecticut. The district court found that various issues had negatively
impacted his job performance. For example, Mr. Kincade, although an IRS employee, was
suspended for failing to file an income tax return in 1991, 1992, 1993, and 1994; he also
received poor performance reviews, and his duties were altered because of inadequate
performance. The district court granted the government's motion for summary judgment,
rejecting all of Mr. Kincade's claims of discrimination and retaliation.2
Mr. Kincade's application for disability retirement was granted by OPM on April 23,
2001, one month after his removal, retroactive to August 24, 1999. It appears that OPM in
May 2000 informed Mr. Kincade that he had not satisfied the criteria for disability retirement
because the agency determined that he "failed to meet the burden of proof that [to be]
eligible for disability retirement based on all of the evidence of record in [his] case file"; but
it appears to have been resolved with reinstatement of disability retirement in 2001.
Meanwhile, in addition to the Connecticut suit, supra, he continued to contest the removal
by administrative appeal. Mr. Kincade refiled his appeal with the Board on April 25, 2005.
Subsequently, in view of the renewed grant of disability retirement, the IRS expressly
cancelled the removal action on December 14, 2005, and then moved before the Board
that the removal was moot.
2 Kincade v. Department of the Treasury, No. 300-CV-1801-PCD (D. Conn.
Sept. 29, 2003).

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2006-3342 4
On February 22, 2006 an Administrative Judge of the MSPB dismissed the appeal
as moot. The AJ reasoned that since Mr. Kincade's disability retirement was retroactive to
August 1999, before the agency removal went into effect, the practical result was that the
agency cancelled his removal in favor of disability retirement. The AJ declined to consider
Mr. Kincade's discrimination and reprisal claims, observing that they were disposed of in
the Connecticut district court. The full Board declined review, and this appeal followed.
DISCUSSION
We affirm a decision of the Board unless it is (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) (2000); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138,
140 (Fed. Cir. 1986). The petitioner bears the burden of establishing error in the Board's
decision. Id.
Mr. Kincade argues that the Board erred on two grounds: (1) that his claims in
connection with his removal action were not mooted upon the agency's recission of the
action, and (2) that his discrimination, retaliation, and emotional distress claims should now
be considered. He seeks compensation for "physical and mental damage" inflicted by the
IRS and for loss of income.
A
As these proceedings evolved, the IRS expressly cancelled the removal action and
on January 3, 2006 placed a letter in Mr. Kincade's Official Personnel Folder (OPF) to show
retirement for disability. The government states, and we agree, that this is the full relief that
would have been available to Mr. Kincade with respect to the removal. See Cooper v.

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2006-3342 5
Dep't of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (the agency's cancellation of a
removal action and deletion of adverse references from the Official Personnel File negate
the consequences of the removal and hence any appeal becomes moot).
We affirm the Board's ruling that the IRS' cancellation of Mr. Kincade's removal and
the adjustment of his official records to show disability retirement mooted the appeal to the
MSPB, and that it was properly dismissed on this ground.
B
Mr. Kincade also argues that the Board erred in not examining his claims of racial
discrimination, retaliation, and emotional distress. The AJ held that his Title VII charges of
discrimination and reprisal were res judicata, for they were heard and found meritless by
the district court. See Montana v. United States, 440 U.S. 147, 153 (1979) (a right or fact
that was at issue and finally determined by a court of competent jurisdiction cannot be
relitigated in a subsequent suit between the same parties or their privies). We discern no
error by the Board, for Mr. Kincade's discrimination and reprisal claims had been decided in
the district court, and were not subject to review or relitigation before the Board. Although
Mr. Kincade is correct that there was a jurisdictional basis for his discrimination and reprisal
claims, see Lamberson v. Dep't of Veterans Affairs, 80 M.S.P.R. 648, 650-51 (M.S.P.B.
1999) (the Board may retain jurisdiction of an appeal for relief and compensatory damages
under, inter alia, discrimination and whistleblowing statutes notwithstanding the appellant's
retroactive retirement status), in the Kincade circumstances the claims are barred by res
judicata. Mr. Kincade's contention that the IRS inflicted "physical and mental damage" and
placed excessive stress upon him was resolved by the district court. To the extent that Mr.

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2006-3342 6
Kincade is dissatisfied with the decision of the district court, his path of review was not
through the MSPB or this court.
Mr. Kincade also argues that he has a right to a hearing on his discrimination and
reprisal claims, and that the district court's summary dismissal of those claims violated
constitutional rights. We discern no constitutional issue, and no error by the Board in its
treatment of these issues.

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