Alver v. Office of Personnel Management ( 2006 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3269
LIBRADO L. ALVER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
____________________________
DECIDED: December 11, 2006
____________________________
Before MICHEL, Chief Judge, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Librado L. Alver (“Alver”) appeals from the final decision of the Merit Systems
Protection Board (“the Board”) denying Alver’s request, pursuant to 5 U.S.C. § 1204(f),
for review of the Office of Personnel Management’s (“OPM”) regulation at 5 C.F.R. §
831.201(a)(14). Alver v. Office of Pers. Mgmt., CB-1205-05-0031-U-1 (M.S.P.B. Apr. 4,
2006). Because we lack jurisdiction to review the Board’s determination, we dismiss.
BACKGROUND
From October 7, 1955 until his retirement on August 16, 1991, Alver worked for
the Department of the Navy at Subic Bay, Philippines, under indefinite appointments
and temporary intermittent appointments. Since 1994, Alver has been involved in
numerous legal proceedings in an attempt to secure a retirement annuity under the Civil
Service Retirement System (“CSRS”). At issue here, on July 27, 2005, Alver filed a
request for review of 5 C.F.R. § 831.201(a)(14) by the Board.
In its April 4, 2006 opinion responding to Alver’s request and two other
consolidated cases, the Board denied the request for review under 5 U.S.C. § 1204(f)1
because it found Alver’s arguments were or should have been raised in his prior
proceedings seeking retirement benefits. Thus, the Board found Alver’s request for
review of the regulation is precluded by res judicata.
DISCUSSION
On appeal, Alver’s arguments focus on the merits of his claim and do not
address either the Board’s decision that res judicata applies or our jurisdiction to review
that decision in light of the applicable statute. The government responds that this court
has no jurisdiction to hear Alver’s appeal because the Board has the “sole discretion” to
grant or deny a petition for review of a regulation under 5 U.S.C. § 1204(f)(1)(B), and
this court has previously stated that it has jurisdiction to review such a denial only when
the Board’s decision reaches the merits of the issue under the OPM regulation. See
Delos Santos v. Office of Pers. Mgmt., 289 F.3d 1382 (Fed. Cir. 2002); Clark v. Office of
Pers. Mgmt., 95 F.3d 1139, (Fed. Cir. 1996).
1
5 U.S.C. § 1204(f)(1)(B) states, “At any time after the effective date of any
rule or regulation issued by the Director of the Office of Personnel Management in
carrying out functions under section 1103, the Board shall review any provision of such
rule or regulation . . . (B) on the granting by the Board, in its sole discretion, of any
petition for such review filed with the Board by any interested person, after
consideration of the petition by the Board.”
06-3269 -2-
We agree with the government. The Board did not reach the merits of any of its
prior determinations, nor did it evaluate the validity of the regulation for which review
was sought here. The Board merely determined that the subject matter raised by the
challenge to the regulation was sufficiently related to prior proceedings that res judicata
applies. As we noted in Delos Santos, “When the court ruled in Clark that it had
jurisdiction to review a Board denial of regulation review where the Board ‘does consider
the merits of the issue under the OPM rule or regulation,’ the ‘merits’ to which this court
referred were those of the underlying dispute, not those of the decision whether to grant
such review.” 289 F.3d at 1384 (emphasis added). Because the Board did not review
the merits of the underlying dispute, we lack jurisdiction. We therefore dismiss the
appeal.
06-3269 -3-