Jay Kruise v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAY KRUISE,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2018-1312
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-17-0839-I-1.
______________________
Decided: May 4, 2018
______________________
J AY K RUISE, Dickson City, PA, pro se.
VITO SALVATORE S OLITRO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER , ROBERT E. K IRSCHMAN, J R.,
F RANKLIN E. WHITE, J R.
______________________
Before M OORE, WALLACH , and HUGHES , Circuit Judges.

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KRUISE v. ARMY 2
P ER CURIAM .
Jay Kruise appeals the Merit Systems Protection
Board’s (“Board”) dismissal of his appeal based on claim
preclusion and the payment limitation provision of the
Back Pay Act, 5 U.S.C. § 5596(b)(4). Because the Board
properly dismissed Mr. Kruise’s appeal, we affirm.
BACKGROUND
In September 2006, Mr. Kruise was employed as an
Information Technology Specialist by the Department of
the Army (“agency”). On September 18, 2006, the agency
noted that Mr. Kruise’s security clearance and access to
sensitive information had been suspended and proposed
that he be suspended for an indefinite period pending a
final determination of his classified access. On November
21, 2006, the agency indefinitely suspended him from
duty without pay pending a final determination regarding
the revocation of his security clearance.
He appealed his indefinite suspension to the Board.
He argued he was indefinitely suspended on the basis of
his race and national origin. In February 2007, the
administrative judge affirmed the agency’s action in light
of the Board’s limited jurisdiction over actions involving
suspension of security access. She determined the
Board’s jurisdiction over the indefinite suspension was
limited to whether the agency complied with certain
procedural requirements, and the Board could not reach
the reasons behind the agency’s actions. She found that
the agency had provided Mr. Kruise with the process due
under 5 U.S.C. § 7513. Mr. Kruise did not appeal, and the
initial decision became final in April 2007. He pursued
other agency review and court actions based on his sus-
pension over the next several years.
Mr. Kruise filed the Board appeal at issue here in
September 2017, seeking back pay from the date of his
indefinite suspension in 2006 through his reinstatement

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KRUISE v. ARMY 3
in July 2007. After issuing an order to show cause why
the appeal should not be dismissed on the basis of res
judicata, the administrative judge determined Mr.
Kruise’s appeal is barred by res judicata, specifically
claim preclusion. He also determined the Back Pay Act
prohibits payments for Mr. Kruise’s claims deriving from
2006 through 2007. The initial decision became final on
November 29, 2017. Mr. Kruise timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We review the Board’s claim preclusion determination
de novo. Phillips/May Corp. v. United States, 524 F.3d
1264, 1267 (Fed. Cir. 2008). We must affirm a Board
decision 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).
“Claim preclusion prevents parties from litigating is-
sues that could have been raised in a prior action.” Car-
son v. Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir.
2005). It applies when “(1) the prior decision was ren-
dered by a forum with competent jurisdiction; (2) the prior
decision was a final decision on the merits; and (3) the
same cause of action and the same parties or their privies
were involved in both cases.” Id.
The Board properly determined that Mr. Kruise’s ap-
peal is barred by claim preclusion. Mr. Kruise does not
contest that the first and third elements of claim preclu-
sion are met. He argues the Board’s 2007 decision was
not a final judgment on the merits because it did not
address whether the security clearance revocation and
related suspension were justified. The Board, however,
did not and does not have jurisdiction to review the rea-
sons why the agency suspended Mr. Kruise’s security
clearance because the Board’s jurisdiction over actions

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KRUISE v. ARMY 4
involving security clearance suspensions is limited to
“determin[ing] whether a security clearance was denied,
whether the security clearance was a requirement of the
appellant’s position, and whether the procedur[al protec-
tions] set forth in section 7513 were followed.” Hesse v.
Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000); see
also Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1998).
The Board rendered a decision on that basis in 2007,
finding that the agency had provided Mr. Kruise with the
statutorily mandated due process. The 2007 Board deci-
sion was thus a final decision on the merits of the matter
over which it had jurisdiction. See, e.g., Weber v. Dep’t of
Army, 18 F. App’x 884, 885 (Fed. Cir. 2001); Marlowe v.
Dep’t of Def., 2004 MSPB LEXIS 3438, *2–5 (M.S.P.B.
July 22, 2004) (dismissing, on the basis of res judicata, an
employee’s challenge of his security clearance suspen-
sion). All of Mr. Kruise’s claims based on his indefinite
suspension and within the Board’s jurisdiction were
available to him at that time. Therefore, the Board
properly dismissed Mr. Kruise’s appeal under claim
preclusion.
Mr. Kruise argues that his present claims for back
pay and other relief are not barred because they were
raised in district court, which lacked jurisdiction over
those claims and thus could not have provided the re-
quested relief. We have recognized that res judicata
should not bar a later claim when the forum in the prior
action lacked jurisdiction to grant the requested relief.
Cunningham v. United States, 748 F.3d 1172, 1179–81
(Fed. Cir. 2014) (holding res judicata did not bar a breach
of contract claim for damages where that remedy was not
available in prior action). The issue here, however, is not
whether Mr. Kruise’s claims are barred by his district
court activity, but whether they are barred by his prior
appeal to the same Board. See id. at 1180. Because Mr.
Kruise could have raised these claims in his first appeal
to the Board, this exception to res judicata does not apply.

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KRUISE v. ARMY 5
We have considered Mr. Kruise’s remaining argu-
ments and find them unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
No costs.

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