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United States Court of Appeals, Ninth Circuit.

Charles MASON, Petitioner, v. DEPARTMENT OF DEFENSE; Defense Commissary Agency, Respondents.

No. 19-72488

Decided: September 16, 2020

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges. Charles Mason, Pro Se David Pehlke, DOJ - U.S. Department of Justice, Civil Division - Commercial Litigation Branch, Washington, DC, for Respondents


Charles Mason petitions pro se for review of the Merit Systems Protection Board's (“MSPB”) dismissal of his appeal in his individual right action alleging violations of the Whistleblower Protection Act. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B). We will set aside the MSPB's actions, findings, or conclusions only if they are “(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). We deny the petition.

The MSPB properly dismissed Mason's appeal as barred by res judicata. See Leon v. IDX Sys. Corp., 464 F.3d 951, 962 (9th Cir. 2006) (dismissal with prejudice is a final judgment on the merits); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (“Newly articulated claims based on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been brought in the earlier action.”); Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (elements of res judicata); Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (“By obtaining [a voluntary dismissal with prejudice], the plaintiff submits to a judgment that serves to bar his claims forever[.]”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The MSPB's untimely motion for leave to intervene (Docket Entry No. 11) is denied as unnecessary.


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