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
06-3177
BRAULIO C. CORPUZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: August 9, 2006
__________________________
Before MICHEL, Chief Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit Judge.
LINN, Circuit Judge.
Braulio C. Corpuz (“Corpuz”) appeals a final decision of the Merit Systems
Protection Board (“Board”), Corpuz v. Office of Personnel Management, No. CB-1205-
05-0023-U-1 (M.S.P.B. Dec. 5, 2005) (“Final Order”), denying Corpuz’s petition for
review of the Office of Personnel Management (“OPM”) regulation at 5 C.F.R.
§ 831.201(a)(13).1 Because the Board did not consider the merits of Corpuz’s petition,
we dismiss for lack of jurisdiction.
1
Corpuz’s petition seeks review of 5 C.F.R. § 831.201(a)(14) (1963-1987).
That regulation was renumbered as 5 C.F.R. § 831.201(a)(13) by OPM in 1988. See 53
Fed. Reg. 42,933, 42,936 (Oct. 25, 1988).
BACKGROUND
Corpuz worked from August 1967 through September 1992 as a civilian
employee for the Navy in the Philippines in positions that were in the excepted service
and classified as either of “limited” or “indefinite” duration. OPM determined that Corpuz
was not entitled to annuity benefits under the Civil Service Retirement Act (“CSRA”),
and the Board affirmed that determination. Corpuz v. Office of Pers. Mgmt., No. SE-
0831-93-0435-I-1 (M.S.P.B. Dec. 22, 1993). On appeal to this court, Corpuz cited
Executive Order 9154 of May 1, 1942 and argued that OPM exceeded its authority in
excluding indefinite appointments in the excepted service from CSRA under 5 C.F.R.
§ 831.201(a)(13). Corpuz v. Office of Pers. Mgmt., 64 F.3d 677 (Fed. Cir. 1995) (table).
Because that argument had been advanced and rejected in Rosete v. Office of
Personnel Management, 48 F.3d 514 (Fed. Cir. 1995), we affirmed. Id.
Corpuz also petitioned the Board to review 5 C.F.R. § 831.201(a)(12) and (a)(13)
pursuant to 5 U.S.C. § 1204(f), claiming these regulations violate 5 U.S.C. § 8347(g).
See De Jesus v. Office of Pers. Mgmt., 73 M.S.P.R. 458 (1997) (including Corpuz’s
petition in a consolidated request for regulation review,), review dismissed sub nom.
Alver v. Office of Pers. Mgmt., 114 F.3d 1205 (Fed. Cir. 1997) (table). The Board
denied the petition. Id.
Corpuz again petitioned the Board to review 5 C.F.R. § 831.201(a)(13), claiming
it violated Section 2(e) of Pub. L. No. 854, 70 Stat. 736, 745 (1956)—the predecessor to
5 U.S.C. § 8347(g)—and Civil Service Rules 1.3(e) and 2.2(c). Final Order, slip op. at
1-2. That petition—the subject of this appeal—was joined with three others. Id. The
06-3177 2
Board denied the requests as barred by res judicata, finding that the parties’ claims
were raised, or could have been raised, in a prior proceeding. Id., slip op. at 4.
DISCUSSION
Corpuz argues that Rosete was wrongly decided and points to Executive Order
9154 and Civil Service Rules 1.3(e) and 2.2(c) as demonstrating that 5 C.F.R.
§ 831.201(a)(13) is not in accordance with the law. The government counters that the
question of whether Corpuz is entitled to annuity benefits under the CSRA has been
fully litigated and thus the Board’s denial based on res judicata should be affirmed.
We must first examine whether we have jurisdiction to review Corpuz’s appeal of
the Board’s denial of his regulation review request. According to 5 U.S.C.
§ 1204(f)(1)(B), the Board has the “sole discretion” to grant or deny a petition for
regulation review filed by “any interested person.” We interpreted that section in Clark
v. Office of Personal Management:
In stating that the decision whether to grant such review was in the
Board’s ‘sole discretion,’ Congress provided that, if the Board decided to
not grant review, that would be the end of the matter, and that Board
decision would not be subject to further review by this court. . . .
If, however, the Board does consider the merits of the issue under
the OPM rule or regulation, then its decision is subject to judicial review in
this court.
95 F.3d 1139, 1141 (Fed. Cir. 1996); see also Delos Santos v. Office of Pers. Mgmt.,
289 F.3d 1382, 1384 (Fed. Cir. 2002).
Here, the Board did not consider the merits of Corpuz’s petition for regulation
review. Instead, the Board decided that under the doctrine of res judicata, Corpuz’s
arguments should have been raised in prior appeals and regulation review requests that
were fully decided on the merits. Final Order, slip op. at 4. In concluding that Corpuz’s
06-3177 3
arguments were precluded by res judicata, the Board did not reach the merits of the
petition; i.e., it did not address whether 5 C.F.R. § 831.201(a)(13) violated Section 2(e)
of Pub. L. No. 854, 70 Stat. 736, 745 (1956) and Civil Service Rules 1.3(e) and 2.2(c).
Where the Board—in its “sole discretion”—denies a petition for review of a regulation
under section 1204(f)(1)(B) without reaching the merits of the complaint, that is “the end
of the matter, and that Board decision [is] not [] subject to further review by this court.”
Clark, 95 F.3d at 1141. Thus, we lack jurisdiction to review the Board’s decision and
the appeal is dismissed.
06-3177 4