Wayne R. Lundberg v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WAYNE R. LUNDBERG,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2536
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-3443-15-0448-I-1.
______________________
Decided: December 6, 2016
______________________
WAYNE R. LUNDBERG , Kettering, OH, pro se.
CALVIN M. M ORROW , Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK .
______________________
Before PROST, Chief Judge, CLEVENGER , and CHEN ,
Circuit Judges.
PER C URIAM.

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LUNDBERG v. MSPB 2
Wayne R. Lundberg, proceeding pro se, appeals a final
decision of the Merit Systems Protection Board, dismiss-
ing his claims that the Department of the Air Force
improperly charged him annual leave on several occasions
when he was performing work in furtherance of the Air
Force’s mission. Because the Board properly concluded
that his claims were barred by the doctrine of collateral
estoppel, we affirm.
BACKGROUND
Mr. Lundberg is an employee of the Air Force at the
Wright-Patterson Air Force Base in Ohio. He alleges that
in 2003, the Air Force improperly charged him annual
leave for time spent working to advance the Air Force’s
mission. Likewise, he alleges the same impropriety
concerning his attendance at a Turbine Engine Technolo-
gy Symposium in 2010.
Mr. Lundberg first appealed these alleged improper
charges to the Board in November 2013. An administra-
tive judge (AJ) issued an initial decision, dismissing Mr.
Lundberg’s appeal for lack of jurisdiction. See Resp’t App.
at 34–40. The AJ concluded that the Board lacked juris-
diction because its jurisdiction only extended to certain
adverse personnel actions enumerated in 5 U.S.C. § 7512
(2012), none of which cover the improper charging of
annual leave. Resp’t App. at 35–36. In doing so, the AJ
rejected Mr. Lundberg’s contention, among others, that 31
U.S.C. § 1342 (2012), a provision generally prohibiting the
federal government from accepting voluntary services,
conferred jurisdiction upon the Board. See Resp’t App. at
36. The AJ reasoned that even under the assumption
that the Air Force had impermissibly accepted voluntary
services from Mr. Lundberg, that did not change an
allegation of improper charging of annual leave into a
covered adverse personnel action under 5 U.S.C. § 7512.
See Resp’t App. at 36. The Board affirmed the AJ’s deci-

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LUNDBERG v. MSPB 3
sion in April 2014, accepting the AJ’s analyses. See id. at
41–45 (Lundberg I).
Despite the Board’s affirmance, which Mr. Lundberg
did not appeal, Mr. Lundberg filed another appeal to the
Board in May 2015, again challenging the above-
mentioned annual leave charges.1 See Resp’t App. at 1–
10 (Lundberg II). On this second go-around, another AJ
ordered Mr. Lundberg to show cause why his appeal
should not be dismissed under the doctrine of res judicata.
Id. at 3, 30–31. In response, Mr. Lundberg argued that
the doctrine was inapplicable because the merits of his
appeal had not been heard by a court of competent juris-
diction and continued to insist that the Board had juris-
diction over his appeal under 31 U.S.C. § 1342. Resp’t
App. at 4, 32–33. The AJ rejected his response, dismiss-
ing the appeal on the ground of collateral estoppel in June
2016. Id. at 3–5.
Mr. Lundberg filed an appeal to our court from the
AJ’s decision, which became the final decision of the
Board after he declined to seek the Board’s review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).
D ISCUSSION
We will affirm the decision of the Board unless it is:
(1) arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law; (2) obtained without
following the procedures required by law; or (3) unsup-
ported by substantial evidence. 5 U.S.C. § 7703(c) (2012).
1 The alleged conduct differed in that Mr. Lundberg
now asserted that the Air Force improperly charged him
annual leave in 2005 and 2006, in addition to 2003 and
2010, for time spent furthering the Air Force’s mission.
See Resp’t App. at 2 (Lundberg II). As we will explain,
this difference is inconsequential to our decision. See
infra n.2.

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LUNDBERG v. MSPB 4
We review the Board’s determination of jurisdiction de
novo, bearing in mind that its jurisdiction is confined to
actions made appealable to it by law, rule, or regulation.
E.g.¸ Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380, 1382
(Fed. Cir. 2008). Mr. Lundberg must prove the Board’s
jurisdiction by a preponderance of the evidence. E.g.,
Rasing v. Dep’t of Navy, 444 F.3d 1349, 1354 (Fed. Cir.
2006) (citing 5 C.F.R. § 1201.56).
We see no error in the Board’s invocation of collateral
estoppel in Lundberg II to bar Mr. Lundberg from reliti-
gating the issue of the Board’s jurisdiction over his claims
against the Air Force for improperly charging him annual
leave in 2003, 2005, 2006, and 2010. Collateral estoppel
is appropriate when: (1) the issue previously adjudicated
is identical to the one now presented; (2) the issue was
actually litigated in the prior case; (3) the previous de-
termination was necessary to the resulting judgment; and
(4) the party precluded was fully represented in the prior
action. Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239
(Fed. Cir. 1988).
The AJ correctly applied these factors. The issue in
Lundberg I and Lundberg II is identical—whether the
Board has jurisdiction over Mr. Lundberg’s claims that
the Air Force improperly charged annual leave. Mr.
Lundberg litigated this issue before the Board in
Lundberg I, but was unsuccessful as the Board decided
that it lacked jurisdiction.2 Therefore, Mr. Lundberg was
not entitled to a second, separate appeal to revisit that
2 That Mr. Lundberg proceeded pro se in Lundberg
I does not mean he was not fully represented in that
action. See Flores v. Dep’t of Treasury, 25 F. App’x 868,
871 (Fed. Cir. 2001) (citing Moss v. Dep’t of the Air Force,
82 M.S.P.R. 309, 314, aff’d sub nom. 230 F.3d 1372 (Fed.
Cir. 1999) (table decision)).

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LUNDBERG v. MSPB 5
previously-decided issue in Lundberg II.3 See, e.g., Co-
lodney v. Dep’t of Health & Human Servs., 314 F. App’x
312, 314–15 (Fed. Cir. 2008) (affirming AJ’s application of
collateral estoppel to preclude appellant from relitigating
issue of Board’s jurisdiction).
Finally, we have considered and liberally construed
all of Mr. Lundberg’s arguments as to why the Board
erred in applying collateral estoppel. We find none of
them persuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
COSTS
No costs.
3 As we mentioned above, the alleged conduct in
Lundberg I differs in one sense from the alleged conduct
in Lundberg II because the latter added incidents of
improper charging of annual leave in 2005 and 2006. See
supra n.1. These additions, however, neither affect our
ruling nor require remand for additional fact finding. Mr.
Lundberg has not appealed Lundberg II on the basis that
the alleged conduct in Lundberg I and Lundberg II were
not identical. See, e.g., Miller v. Dep’t of Army, 987 F.2d
1552, 1554 n.3 (Fed. Cir. 1993) (declining to decide
whether Board erred on an issue when the appeal did not
challenge the Board’s decision on the issue). That choice
is understandable given that the legal issue at stake is
identical across all the contested annual leave charges.

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