The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE A. CAMPOS, DOCKET NUMBER
Appellant, DC-831E-14-0903-I-1
v.
OFFICE OF PERSONNEL DATE: March 23, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
José A. Campos, Jr., Panamá, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as res judicata his appeal of the Office of Personnel Management’s
(OPM’s) final decision denying his application for a Civil Service Retirement
System (CSRS) annuity. Generally, we grant petitions such as this one only
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
when: the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant served in various positions with the Department of the Army
in the Panama Canal Zone between March 12, 1973 and July 6, 1999. MSPB
Docket No. DC-831E-07-0224-I-1, Initial Appeal File (0224 IAF), Tab 5,
Subtab 2 at 1. On or about August 23, 2004, the appellant applied for a CSRS
deferred annuity. 0224 IAF, Tab 5, Subtab 5. On September 22, 2006, OPM
issued a final decision denying the application on the basis that the appellant did
not meet the age and service requirements. Id., Subtab 2. Specifically, OPM
found that the appellant had a break in service between March 20, 1981 and
December 6, 1982, that disqualified him from an annuity under 5 U.S.C. § 8336(i)
based on his Panama Canal service. Id.
¶3 On appeal to the Board, an administrative judge issued a February 28, 2007
initial decision affirming OPM’s final decision. 0224 IAF, Tab 10, Initial
Decision (0224 ID). The appellant filed a petition for review, and on March 6,
2009, the Board issued a final order denying the petition and allowing the initial
decision to become final. MSPB Docket No. DC-831E-07-0224-I-1, Petition for
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Review File, Tab 5; Campos v. Office of Personnel Management, MSPB Docket
No. DC-0831E-07-0224-I-1, Final Order (Mar. 6, 2009) (0224-I-1 Final Order).
¶4 On March 11, 2011, the appellant filed a pleading with the regional office
captioned “Petition for Enforcement,” in which he appeared, at least in part, to be
rearguing the merits of his prior Board appeal. MSPB Docket No. DC-831E-07-
0224-C-1, Compliance File (CF), Tab 1. An administrative judge issued an initial
decision, finding that the Board lacked jurisdiction over the matter as a petition
for enforcement because there was no enforceable order in the case, and that to
the extent that the appellant was rearguing the merits of his appeal, the matter
was barred as res judicata. Id., Tab 7, Initial Decision. The appellant filed a
petition for review, which the Board denied on November 9, 2011, finding that
the appellant’s apparent attempt to relitigate his prior appeal was barred as res
judicata, and that the appellant had not established a sufficient basis for
reopening the prior appeal. MSPB Docket No. DC-831E-07-0224-C-1, Petition
for Review File, Tab 1; Campos v. Office of Personnel Management, MSPB
Docket No. DC-831E-07-0224-C-1, Final Order (Nov. 9, 2011) (0224-C-1 Final
Order).
¶5 On July 16, 2014, the appellant filed the instant appeal, again challenging
OPM’s September 22, 2006 final decision. 2 Initial Appeal File (IAF), Tab 1 at 4.
The administrative judge issued an initial decision dismissing the appeal as res
judicata. IAF, Tab 10, Initial Decision (ID).
2
On his initial appeal form, the appellant listed November 9, 2011, as the date he
received the final decision at issue, and February 28, 2007, as the effective date of the
decision. IAF, Tab 1 at 4. This suggests that he intends his appeal to be a challenge to
the Board’s two previous decisions in this matter rather than the underlying OPM
decision per se. However, the appellant has no further right of review of these
decisions before the Board, and as explained in the Board’s Final Orders, the
appellant’s further review rights were before the U.S. Court of Appeals for the Federal
Circu it. 0224 I-1 Final Order at 2; 0224-C-1 Final Order at 4. To the extent that the
appellant is requesting that the Board reopen his prior appeal, for the reasons explained
below, we find an insufficient basis for reopening. I nfra ¶ 12.
4
¶6 The appellant has filed a petition for review, arguing that the doctrine of res
judicata should not apply because his prior appeal was decided based on
incomplete information, and that, contrary to the Board’s decision in that appeal,
he had continuous service sufficient to entitle him to an annuity. Petition for
Review (PFR) File, Tab 1. OPM has not filed a response.
¶7 Res judicata, or claim preclusion, prevents parties from litigating issues that
could have been raised in a prior action. Carson v. Department of Energy,
398 F.3d 1369, 1375 (Fed. Cir. 2005). Under the doctrine of res judicata, a valid,
final judgment on the merits of an action bars a second action involving the same
parties or their privies based on the same cause of action. Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995). The general rule of res judicata rests upon
considerations of economy of judicial time and public policy favoring the
establishment of certainty in legal relations. The rule provides that when a court
of competent jurisdiction has entered a final judgment on the merits of a cause of
action, the parties to the suit and their privies are thereafter bound “not only as to
every matter which was offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might have been offered for
that purpose.” Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597
(1948) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1876)). Res
judicata applies if: (1) the prior decision was rendered 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. Carson, 398 F.3d at 1375.
¶8 For the reasons explained in the initial decision, we agree with the
administrative judge that this appeal is barred as res judicata. ID at 3-4. The
Board had jurisdiction under 5 U.S.C. § 8347(d)(1) to adjudicate the appellant’s
prior appeal of OPM’s final decision, 0224 IAF, Tab 1, Tab 5, Subtab 2, the
Board rendered a final decision on the merits, 0224 ID; 0224-I-1 Final Order, and
the instant appeal pertains to the same cause of action (OPM’s final decision
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denying the appellant’s retirement application) and involves the same parties (the
appellant and OPM), IAF, Tab 1 at 3. Therefore, all three conditions for res
judicata are satisfied. See Carson, 398 F.3d at 1375.
¶9 On petition for review, the appellant argues that it is unfair to apply res
judicata because the Board’s decision in the first appeal was incorrect. PFR File,
Tab 1 at 6-7, 13, 15. He argues that the February 28, 2007 initial decision was
based on an inaccurate account of his employment history due to the absence of
certain information from the record, id. at 5, 7-9, 11-12, 15, and that the judgment
was not a judgment on the merits because it was wrong, id. at 7, 13, 15-16.
¶10 We disagree. The Board’s decision in the prior appeal was a final judgment
on the merits. A judgment on the “merits” is a judgment that resolves the
underlying dispute in the case, as opposed to a judgment disposing of a case on
jurisdictional or procedural grounds. Black’s Law Dictionary 1079 (9th ed.
2009). The term does not pertain to whether the decision was correct or
“meritorious.” In fact, the very purpose of the res judicata doctrine is, for the
benefit of the parties, the tribunal, and the public, to avoid revisiting final
judgments to reassess their correctness. Sunnen, 333 U.S. at 597. Therefore,
despite the appellant’s view that our prior decision was incorrect, we will not
readjudicate this matter. 3
¶11 To the extent that the appellant is requesting that the Board reopen his prior
appeal under 5 C.F.R. § 1201.118, for the following reasons, we decline to do so.
A determination of whether to reopen involves balancing the desirability of
3
The appellant argues that he is not fluent in English and is not sufficiently competent
to challenge the administrative judge’s findings on the res judicata issue. PFR File,
Tab 1 at 5. To the extent that the appellant is experiencing difficu lty with language
barriers or legal issues, it was his right to choose a representative or obtain assistance
from another individual who could help him. See 5 C.F.R. § 1201.31(a)-(b). The
appellant’s decision to prosecute this appeal pro se is not a sufficient basis for us to
disturb the initial decision. See Murdock v. Government Printing Office, 38 M.S.P.R.
297, 299 (1988) (a pro se appellant may not escape the consequences of inadequate
representation).
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finality and the public interest in reaching what ultimately appears to be the right
result. Burciaga v. Department of the Army, 82 M.S.P.R. 460, ¶ 6 (1999). The
Board’s exercise of its authority to reopen an appeal has uniformly been held to
be discretionary, and required only in unusual or extraordinary circumstances. Id.
at 4. Furthermore, the Board generally exercises its authority to reopen an appeal
only within a short and reasonable time period, usually measured in weeks rather
than years. Flaminio v. Department of Justice, 95 M.S.P.R. 520, ¶ 13 (2004).
¶12 In this case, a significant period of time has passed since the Board’s
decision became final on March 6, 2009. This delay of over 5 years weighs
heavily against reopening. See Murray v. National Aeronautics & Space
Administration, 112 M.S.P.R. 680, ¶ 5 n.1 (2009), aff’d, 387 F. App’x 955 (Fed.
Cir. 2010). Furthermore, the appellant has not identified any new evidence that
appears likely to change the outcome of this appeal. Cf. Special Counsel v.
Ferro, 91 M.S.P.R. 539, ¶ 5 (2002) (reopening a final judgment based on
previously unavailable evidence). The appellant argues that his documentary
evidence is now appearing in “the MSPB’s Repository” for the first time in
8 years, and that the administrative judges who decided his previous appeal did
not have the benefit of that evidence. PFR File, Tab 1 at 5, 7-8, 11-12, 15. It
appears that the appellant is referring to the documents that he submitted in the
instant appeal, which are contained in Tab 9 of the initial appeal file. It also
appears that the appellant may have attempted unsuccessfully to submit at least
some of these documents along with his March 11, 2011 petition for enforcement.
CF, Tab 1. However, even assuming that some technical error prevented the
Board from receiving this evidence, this is immaterial because the Board’s final
judgment on the merits had already been in place since March 6, 2009—more
than 2 years before the appellant filed his petition for enforcement. 0224-I-1
Final Order. The appellant has not explained why he was unable to file this
evidence, or the information contained therein, before the close of the record in
his original appeal. See Mc Mullen v. Department of the Treasury, 83 M.S.P.R.
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448, ¶ 6 (1999) (for newly-filed evidence to constitute a sufficient basis for
reopening, it must have been previously unavailable despite the party’s due
diligence).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.