Artemio E. Caja v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTEMIO E. CAJA, DOCKET NUMBER
Petitioner, CB-1205-15-0040-U-1
v.
OFFICE OF PERSONNEL DATE: September 22, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Rizalino S. Cayle, Olongapo City, Philippines, for the petitioner.
Beth Cobert, 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 the
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.
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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, on its face, require any employee
to commit a prohibited personnel practice as defined by 5 U.S.C. § 2302(b).
See 5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has the authority to determine
that an OPM regulation has been invalidly implemented by an agency if the
Board determines that the provision, as implemented, has required any employee
to commit a prohibited personnel practice. 5 U.S.C. § 1204(f)(2)(B).
¶3 The petitioner contends that 5 C.F.R. § 831.201(a)(13) violates 5 U.S.C.
§ 8332(e) and various other provisions because OPM’s regulation excludes from
civil service retirement coverage employees like the petitioner who served under
an indefinite appointment made after January 23, 1955. The petitioner challenges
OPM’s exclusion of such indefinite employees pursuant to its authority
under 5 U.S.C. § 8347(g), to exclude temporary or intermittent employees from
such coverage. However, the petitioner has unsuccessfully litigated this identical
claim on the merits in a previous case. See Caja v. Office of Personnel
Management, 585 F. App’x 1008 (Fed. Cir. 2014). 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 the prior proceeding.
Francisco v. Office of Personnel Management, 80 M.S.P.R. 684, 686-87 (1991).
Accordingly, we dismiss the petitioner’s request for regulation review as barred
by res judicata.
¶4 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.