The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISMAEL DELGADO, DOCKET NUMBER
Appellant, AT-831M-15-0176-I-1
v.
OFFICE OF PERSONNEL DATE: June 25, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Ismael Delgado, Miami, Florida, pro se.
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 barred by res judicata his appeal from an Office of Personnel
Management (OPM) reconsideration decision finding that he owed an
overpayment. Generally, we grant petitions such as this one only when: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
However, we FORWARD the appellant’s request for review of his claims
concerning OPM’s alleged nonpayment of annuity benefits from 2005 through
present to the regional office for docketing as a new appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant retired on November 9, 1987, and received a disability
retirement annuity under the Civil Service Retirement System (CSRS). See Initial
Appeal File (IAF), Tab 4 at 29. He received benefits until July 31, 2005, when
OPM determined that he had been restored to earning capacity effective July 1,
2001. Id. OPM informed the appellant that he had received an overpayment of
$53,227.40 between his restoration to earning capacity in 2001 and the
termination of his annuity payments in 2005, which OPM intended to collect. Id.
at 29, 34-36. The appellant requested reconsideration and, in a February 23, 2006
reconsideration decision, OPM affirmed its prior decision. Id. at 29-32. The
appellant timely appealed to the Board, and the administrative judge affirmed the
reconsideration decision in a June 27, 2006 initial decision. Id. at 20-25; see
3
Delgado v. Office of Personnel Management, MSPB Docket No. AT-831M-06-
0457-I-1, Initial Decision (June 27, 2006). The appellant petitioned for review of
the initial decision and, in an October 6, 2006 final order, the Board affirmed.
Delgado v. Office of Personnel Management, MSPB Docket No. AT-831M-06-
0457-I-1, Final Order (Oct. 6, 2006). The appellant did not seek further review of
the Board’s final decision.
¶3 In a letter dated November 24, 2014, the appellant demanded that the
Department of the Treasury cease collection of the overpayment and send his case
back to OPM because he had requested a Board hearing. 2 See IAF, Tab 1 at 1.
The appellant sent a copy of the letter to the Atlanta Regional Office, which
docketed the letter as a new appeal. See IAF, Tabs 1-2. The administrative judge
issued an acknowledgment order setting forth the law and burden of proof
relevant to waiver or adjustment of the overpayment and a show cause order
advising the appellant that his appeal may be barred by the doctrine of res
judicata and ordering him to show good cause why the appeal should not be
dismissed. IAF, Tab 2 at 2, 9-11, Tab 5. In response, the appellant challenged
OPM’s calculation of his overpayment. See IAF, Tabs 6-7. The administrative
judge found that the appellant’s claim was barred by the doctrine of res judicata
and dismissed the appeal. IAF, Tab 8, Initial Decision (ID). The appellant has
filed a petition for review of the initial decision, wherein he again challenges the
merits of OPM’s overpayment determination but does not address res judicata.
See Petition for Review (PFR) File, Tab 1. The agency has responded in
opposition to the appellant’s petition for review. PFR File, Tab 4.
¶4 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
2
We note that OPM submitted an August 26, 2014 letter from the appellant addressed
to the Atlanta Regional Office, with copies to OPM, requesting a hearin g and
challenging the $53,277.40 overpayment determination and the nonpayment of annuity
benefits from 2005 through present. See IAF, Tab 4 at 8-9. It is unclear, however,
whether the appellant ever sent this letter to the regional office.
4
the same cause of action. Johnson v. Department of Veterans Affairs,
121 M.S.P.R. 695, ¶ 9 (2014), aff’d, No. 14-9619, 2015 WL 2437090 (10th Cir.
May 22, 2015). Thus, res judicata precludes parties from relitigating issues that
were, or could have been, raised in the prior action, and is applicable if: (1) the
prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Id. Here, the
administrative judge found that these elements were met because the Board’s
October 6, 2006 final order involved the same parties and was, like the instant
appeal, an appeal of OPM’s determinations that the appellant was restored to
earning capacity and received an overpayment of $53,277.40. ID at 3. Thus, the
administrative judge concluded that the present appeal was barred by the doctrine
of res judicata. On review, the appellant has not challenged, and we discern no
reason to disturb, the administrative judge’s finding that the appellant’s attempt
to relitigate OPM’s determination that he was restored to earning capacity
effective July 1, 2001, and that he received an overpayment of $53,277.40, is
barred by res judicata.
¶5 We note that the appellant’s pleadings below and on review also challenge
OPM’s nonpayment of his disability annuity benefits from 2005 through 2010 and
the nonpayment of his retirement annuity from 2010, when he states he reached
age 60, through present. IAF, Tab 6 at 2; PFR File, Tab 1 at 3. These claims,
however, were not addressed in the initial decision. See ID. In order to
adjudicate these claims in the first instance, we forward the matter to the regional
office to be docketed as a new appeal.
ORDER
¶6 In light of the above, we DENY the appellant’s petition for review and
AFFIRM the initial decision insofar as it found that the appellant’s challenge to
the $53,277.40 overpayment determination is barred by res judicata. We
5
FORWARD the appellant’s challenge of OPM’s nonpayment of annuity benefits
from 2005 through present to the regional office to be docketed as a new appeal.
Upon docketing, the administrative judge shall give the appellant explicit notice
of the law and his burden of proof to establish Board jurisdiction over an appeal
of an OPM determination affecting his rights or interests under CSRS and permit
him an opportunity to respond and submit evidence. See, e.g., Hasanadka v.
Office of Personnel Management, 116 M.S.P.R. 636, ¶¶ 19, 21 (2011) (discussing
how to establish Board jurisdiction over a retirement appeal). If there is a
question of timeliness in relation to the appellant’s Board appeal, the
administrative judge should consider whether OPM’s receipt of the appellant’s
August 26, 2014 Board appeal and request for a hearing constitutes a timely filing
with the Board. See Patterson v. Office of Personnel Management, 51 M.S.P.R.
408, 410-11 (1991) (stating that under certain circumstances, untimeliness may be
excused where an appellant mistakenly filed his appeal with OPM). Lastly, the
administrative judge shall afford the appellant an opportunity to show that his
claim is not barred by res judicata or collateral estoppel. 3 See generally Peartree
v. U.S. Postal Service, 66 M.S.P.R. 332, 336-37, 341 (1995) (discussing the two
doctrines).
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
3
We note that the appellant’s prior Board appeals seeking review of OPM
determinations include MSPB Docket Nos. AT-831M-12-0416-I-1, AT-831M-11-0955-
I-1, AT-831M-08-0855-I-1, and AT-831M-06-0457-I-1.
6
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 appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.