The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUIRINO B. ESTABILLO, DOCKET NUMBER
Petitioner, CB-1205-15-0030-U-1
v.
OFFICE OF PERSONNEL DATE: December 14, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rizalino S. Cayle, Olongapo City, Philippines, for the petitioner.
Stephanie Fekete, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The petitioner asks the Board, pursuant to 5 U.S.C. § 1204(f), to review a
regulation of the Office of Personnel Management (OPM) at 5 C.F.R.
§ 831.201(a)(13). For the reasons discussed below, we DENY the petitioner’s
request as barred by res judicata.
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
DISCUSSION
¶2 The Board has original jurisdiction to review rules and regulations
promulgated by OPM. 5 U.S.C. § 1204(f). The Board is authorized to declare an
OPM rule or regulation invalid on its face if the Board determines that the
provision would, if implemented by an agency, require any employee to violate a
prohibited personnel practice as defined by 5 U.S.C. § 2302(b). See 5 U.S.C.
§ 1204(f)(2)(A). The Board’s regulations require an individual requesting such
review to describe specifically how the regulation would require a prohibited
personnel practice and to identify the specific prohibited personnel practice
alleged. 5 C.F.R. § 1203.11(b)(1)(iii-iv).
¶3 The petitioner contends that 5 C.F.R. § 831.201(a)(13) violates 5 U.S.C.
§ 8347(g), which authorizes OPM to exclude from civil service retirement
coverage employees whose employment is temporary or intermittent, because the
regulation excludes from such coverage employees like the petitioner who served
under an indefinite appointment made after January 23, 1955. 2 The petitioner
contends that, by erroneously defining temporary appointments to include
indefinite appointments in violation of section 8347(g), OPM’s regulation
requires the commission of a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(11). According to the petitioner, section 8347(g) is a statute within the
meaning of section 2302(b)(11) that implements or directly concerns the merit
system principle providing that employees should be protected against arbitrary
actions. See 5 U.S.C. § 2301(b)(8)(A).
¶4 In its response to the petitioner’s request, OPM asks the Board to dismiss
the petitioner’s request for lack of jurisdiction or to deny the request because the
issues that are raised by the petitioner are barred by res judicata. As to the latter
argument, OPM notes that the petitioner has presented this same claim several
2
The petitioner was employed periodically from 1960 until his retirement in 1991 by
the Department of the Navy in Subic Bay, the Philippines. Estabillo v. Office of
Personnel Management, No. 94-3552, 1995 WL 413204 (Fed Cir. July 17, 1995).
3
times to the Board, first in an appeal of OPM’s denial of his initial request for
retirement benefits and subsequently in three requests for review of the OPM
regulation at issue here.
¶5 The Board’s decision rejecting this claim in the petitioner’s appeal from
OPM’s denial of retirement benefits was summarily affirmed by the U.S. Court of
Appeals for the Federal Circuit, see Estabillo, 1995 WL 413204; supra n.2, citing
its precedential decision on this issue in Rosete v. Office of Personnel
Management, 48 F.3d 514 (Fed. Cir. 1995). The petitioner’s previous regulation
review requests based on the same claim were denied by the Board on res judicata
grounds, and the two decisions that were appealed were dismissed by the Federal
Circuit. See Estabillo v. Office of Personnel Management, 71 M.S.P.R. 567
(1996) (Table); Estabillo v. Office of Personnel Management, 82 M.S.P.R. 15
(1999); Estabillo v. Office of Personnel Management, 100 M.S.P.R. 560 (2005).
¶6 The doctrine of res judicata precludes a second action involving the same
parties and based on the litigation of claims that were, or could have been,
asserted in a prior proceeding. See Nevada v. United States, 463 U.S. 110, 130
(1983); Spears v. Merit Systems Protection Board, 766 F.2d 520, 523 (Fed. Cir.
1985); Francisco v. Office of Personnel Management, 80 M.S.P.R. 684, 686
(1999). The petitioner’s claim here is identical to the claim he has previously
litigated, and he has not shown that any additional argument he is attempting to
present in this case could not have been raised in the first of these proceedings.
ORDER
¶7 Accordingly, we dismiss the petitioner’s request for regulation review
because it is barred by the doctrine of res judicata. This is the final decision of
the Merit Systems Protection Board in this proceeding. Title 5 of the Code of
Federal Regulations, section 1203.12(b) (5 C.F.R. § 1203.12(b)).
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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 U.S. 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 U.S. 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 an appeal to
the U.S. 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
5
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.