NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-3060
BERNABE B. PANGILINAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Bernabe B. Pangilinan, of Olongapo City, Philippines, pro se.
Patrick B. Bryan, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, of Washington, DC, for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; and Mark A.
Melnick, Assistant Director. Of counsel on the brief was Jo-Ann Chabot, Attorney Advisor,
Office of Personnel Management, of Washington, DC.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-3060
BERNABE B. PANGILINAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
____________________________
DECIDED: June 11, 2007
____________________________
Before LOURIE, SCHALL, and PROST, Circuit Judges.
PER CURIAM
DECISION
Bernabe B. Pangilinan (“Pangilinan”) appeals from the final decision of the Merit
Systems Protection Board (“the Board”) affirming the Office of Personnel Management’s
(“OPM”) decision denying his appeal for disability benefits under the Civil Service
Retirement System (“CSRS”). Pangilinan v. Office of Pers. Mgmt., SF-0831-16-0315-I-
1 (M.S.P.B. June 2, 2006) (“Initial Decision”). Because the Board correctly determined
that his claim was barred by res judicata, we affirm.
BACKGROUND
On August 1, 1956, Pangilinan began working for the United States Navy at
Subic Bay, Philippines. He was employed as a chauffeur pursuant to an excepted
service indefinite appointment. On March 18, 1977, after several reassignments and a
promotion, Pangilinan retired from federal employment due to a physical disability.
Pangilinan applied for deferred annuity benefits pursuant to the CSRS. On
October 5, 2000, OPM issued a final decision concluding that Pangilinan’s services
were not covered under the CSRS and therefore he was not entitled to a deferred
annuity. Pangilinan v. Office of Pers. Mgmt., SE-0831-01-0127-I-1 (M.S.P.B. Apr. 17,
2001). The Board affirmed the final decision of the OPM on April 17, 2001. In reaching
that determination, the Board found that none of Pangilinan’s Notification of Personnel
Action forms indicated that he was covered by the CSRS. Instead, the Board found that
the coverage described in the forms referred to retirement coverage pursuant to a
collective bargaining agreement dated January 8, 1976, which entitled Pangilinan to
retirement pay. In addition, the Board found that the forms indicated that payroll
deductions were never taken from his salary, further indicating that Pangilinan never
made payments to the Civil Service Retirement Fund. As such, the Board affirmed the
OPM’s denial of a deferred annuity benefit under the CSRS. Pangilinan did not seek
further review before the full Board, and thus that decision became final.
On or around January 2006, Pangilinan then inquired of the OPM about disability
retirement benefits. In a letter dated January 13, 2006, OPM reminded Pangilinan of his
previous application for benefits and the determination that his service was not
creditable, and informed him that he was not entitled to benefits under the CSRS.
Pangilinan filed a second appeal to the MSPB, which was “based on the same Federal
service reviewed in his prior appeal.” Initial Decision, slip op. at 2. On February 8,
2006, the Board issued an order requiring Pangilinan to show cause why his appeal
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should not be dismissed as barred by the doctrines of res judicata or collateral estoppel.
Pangilinan responded, inter alia, that his claim differed because he was seeking a
“disability” annuity, as opposed to a “deferred” annuity, which he sought in his prior
claim.
The Administrative Judge (“AJ”) determined that Pangilinan’s second claim was
barred by res judicata. The AJ first noted that the parties did not dispute that the Board
had jurisdiction over Pangilinan’s prior claim, that the prior judgment was based on the
merits and was final, that the same parties were involved in both claims, and that both
claims concern Pangilinan’s entitlement to benefits under the CSRS. Id. at 3.
Additionally, the Board found that the period of service in question ended prior to his
claim for deferred annuity, and Pangilinan did not assert that he unaware of his disability
during his federal service. Thus, the AJ concluded that Pangilinan failed to “explain why
all of his arguments could not have been raised in the earlier proceeding.” Id. at 4. As
such, the AJ held that res judicata applied and dismissed the appeal.
Pangilinan appealed the AJ’s decision to the full Board, which denied his petition
for review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b).
Pangilinan timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
07-3060 -3-
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Pangilinan argues that he was entitled to file a disability claim
pursuant to certain statutory provisions, including 5 U.SC. § 8337. In addition,
Pangilinan appears to assert that the Department of the Navy was obligated to apply for
disability on his behalf, but failed to meet that obligation. Moreover, Pangilinan
contends, without further elaboration, that res judicata does not apply because
“disability re[t]irement is different from deferred retirement.” Pet’r Reply at 2. The
government responds that none of those arguments identifies any basis for reversing
the Board’s conclusion that res judicata bars Pangilinan’s claim for disability benefits.
We agree with the government. A petitioner may be barred by res judicata “if (1)
the prior decision was rendered by a forum with competent jurisdiction; (2) the prior
decision was a final decision on the merits; and (3) the same cause of action and the
same parties or their privies were involved in both cases.” Carson v. Dep’t of Energy,
398 F.3d 1369, 1375 (Fed. Cir. 2005). As discussed above, the Board found that all
three criteria were satisfied. Indeed, those findings were undisputed by the parties. We
thus find that conclusion to be supported by substantial evidence and not contrary to
law. Moreover, none of Pangilinan’s arguments provides a proper basis for concluding
that the doctrine of res judicata does not apply in this case. Accordingly, because
Pangilinan fails to identify any reversible error, we affirm.
07-3060 -4-