Siwa v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-3174
ALIPIO M. SIWA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: November 9, 2006
__________________________
Before SCHALL and GAJARSA, Circuit Judges, and MCKINNEY, Chief Judge.*
PER CURIAM.
DECISION
Alipio M. Siwa petitions for review of the decision of the Merit Systems Protection
Board (“Board”) that dismissed, upon the basis of res judicata, his request for review of
5 C.F.R. § 831.201(a)(13), a regulation of the Office of Personnel Management
*
Honorable Larry J. McKinney, Chief Judge of the United States District
Court for the Southern District of Indiana, sitting by designation.
(“OPM”). Siwa v. Office of Pers. Mgmt., No. CB1205050024-U-1 (M.S.P.B. Dec. 5,
2005). We dismiss for lack of jurisdiction.
DISCUSSION
I.
Pursuant to 5 U.S.C. § 1204(f)(1)(B), the Board is authorized to review OPM
regulations. Mr. Siwa and others sought to avail themselves of this provision by filing a
petition with the Board asking it to review 5 C.F.R. § 831.201(a)(13). Section
831.201(a)(13) excludes from coverage under the Civil Service Retirement System
employees “serving under nonpermanent appointments, designated as indefinite, made
after January 23, 1955, the effective date of the repeal of Executive Order 10180.
In its December 5 decision, the Board ruled that the requests for review of
section 831.201(a)(13) were barred by res judicata. The basis for the Board’s ruling
was that it previously had adjudicated appeals by Mr. Siwa and the other petitioners in
which it sustained OPM’s denial of civil service retirement coverage pursuant to section
831.201(a)(13). The Board explained that what was at issue in the previous appeals
was whether OPM had properly excluded petitioners from
civil service retirement coverage under 5 C.F.R.
§ 831.201(a)(13). The Board, in denying the benefits,
affirmed the validity of section 831.201(a)(13) as a
reasonable interpretation of 5 U.S.C. § 8347(a) and the
Federal Circuit affirmed the Board’s conclusion. See e.g.,
Estabillo v. Office of Personnel Management, MSPB Docket
No. SB-0831-94-0220-I-1 (Mar. 7, 1994), aff’d, 62 F.3d 1432(Fed. Cir. 1995) (Table) . . . .
Siwa, slip op. at 3 (footnote omitted). The Board added that Mr. Siwa and his fellow
petitioners were not entitled “to return to the Board” and that their claims that section
831.201(a)(13) was invalid—to the extent that they were different from claims raised in
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the previous appeals—“could have been raised in the earlier proceedings.” Id. at 4.
Accordingly, the Board denied Mr. Siwa’s request for review of the regulation. Mr. Siwa
now appeals the Board’s decision.
II.
In Delos Santos v. Office of Pers. Mgmt, 289 F.3d 1382 (Fed. Cir. 2002), we
stated that “this court has jurisdiction to review the Board’s refusal to grant regulation
review only if in doing so the Board considered the merits of the underlying agency
action.” Id. at 1385. As just seen, in this case, the Board refused to grant regulation
review on the ground that review was barred by res judicata. Thus, the Board did not
consider “the merits of the underlying agency action.” See Clark v. Office of Pers.
Mgmt., 95 F.3d 1139, 1141 (Fed. Cir. 1996) (holding that this court only has jurisdiction
when the Board decided the challenge on the merits and giving the example of the
Board refusing to review a claim when it would more properly be decided in an adverse
individual personnel action). We see no distinction between a refusal to review a
regulation because “the issue could be more appropriately determined in connection
with review of an adverse individual personnel action” and a refusal to review a
regulation because the Board determined that it had already decided the issue in an
adverse individual personnel action—indeed one involving the same individual. See id.(“In stating that the decision whether to grant such review was in the Board’s ‘sole
discretion,’ Congress provided that, if the Board decided not to grant review, that would
be the end of the matter, and that Board decision would not be subject to further review
by this court.”). That means that we are without authority to consider Mr. Siwa’s appeal
2006-3174 3
of the Board’s December 5, 2005 decision. We therefore dismiss Mr. Siwa’s appeal for
lack of jurisdiction.
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