The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LENNIS REYNOLDS, DOCKET NUMBER
Appellant, CH-0841-15-0514-I-1
v.
OFFICE OF PERSONNEL DATE: January 20, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Lennis Reynolds, Racine, Wisconsin, pro se.
Kristine Prentice, 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 his appeal of a June 22, 2010 reconsideration decision issued by the
Office of Personnel Management (OPM) denying his request for an annuity
supplement under Federal Employees’ Retirement System (FERS). Generally, we
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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grant petitions such as this one only 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 administrative 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, 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 On June 22, 2010, OPM issued a final decision finding that the appellant
was not entitled to an annuity supplement under FERS. Initial Appeal File (IAF),
Tab 7 at 31. The appellant filed an appeal with the Board on July 7, 2010, and
the administrative judge issued an initial decision on November 5, 2010,
affirming OPM’s decision. Id. at 6; see Reynolds v. Office of Personnel
Management, No. CH-0841-10-0788-I-1, Initial Decision (Nov. 5, 2010). After
the Board issued a final order on May 17, 2011, which denied the appellant’s
petition for review of the initial decision, he exercised his right to request that the
U.S. Court of Appeals for the Federal Circuit review the Board’s decision. IAF,
Tab 7 at 10-14. The court dismissed the appellant’s petition for review on
August 25, 2011, for failure to prosecute. Id. at 10.
¶3 On June 10, 2015, the appellant filed a new appeal with the Board seeking
to again challenge OPM’s June 22, 2010 final decision. IAF, Tab 1. The
appellant argued that he has “new evidence,” which merely consists of his
disagreement with OPM’s decision and his argument that he is entitled to an
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annuity supplement pursuant to 5 U.S.C. § 8421. Id. at 5-6, 9. The
administrative judge ordered the appellant to file evidence and argument showing
good cause why his appeal should not be dismissed because it appeared that the
matter he raised on appeal was previously adjudicated, and therefore barred by
the doctrine of res judicata. IAF, Tab 3.
¶4 OPM responded to the order by arguing that “the issue on appeal had
already been litigated, [and that] further litigation is precluded by the principles
of res judicata.” IAF, Tab 7 at 4. OPM also submitted documentation proving
that the appellant had already sought review of OPM’s June 22, 2010 final
decision to the Board and the court without success. Id. at 10-35. The appellant
offered no argument in opposition to dismissing his appeal as barred by
res judicata, although he argued that he filed a timely appeal after he obtained
new evidence. IAF, Tab 5 at 3.
¶5 The administrative judge issued an initial decision dismissing the appeal as
barred by the doctrine of res judicata, finding that the appellant received a prior
decision on the merits of OPM’s reconsideration decision by a forum of
competent jurisdiction. IAF, Tab 8, Initial Decision (ID) at 3. The appellant
filed a petition for review arguing the merits of his appeal, and OPM responded in
opposition to his petition. Petition for Review (PFR) File, Tabs 1, 4.
¶6 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). On review, the appellant merely argues the merits of his appeal without
disputing the administrative judge’s finding that his appeal is barred by the
doctrine of res judicata. PFR File, Tab 1 at 4-5; ID at 3. We find no reason to
disturb the administrative judge’s finding that res judicata applies to bar this
appeal because it is undisputed that: (1) the appellant could have raised the same
arguments in his last appeal of OPM’s June 22, 2010 final decision; (2) he
received a prior judgment on the merits of OPM’s final decision by a forum with
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competent jurisdiction; and (3) the record reflects that his appeals involved the
same cause of action and the same parties or their privies. ID at 2; see IAF,
Tabs 7-8; Peartree, 66 M.S.P.R. at 337. We therefore deny the petition for
review of the initial decision that dismissed this appeal as barred by the doctrine
of res judicata.
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:
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 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.
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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
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.