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
05-3218
CLARENCE A. FREDERICK,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
_______________________
DECIDED: June 7, 2006
_______________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.
PER CURIAM.
DECISION
Clarence A. Frederick petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) denying his request for regulation review pursuant
to 5 U.S.C. § 1204(f). Frederick v. Office of Pers. Mgmt., No. CB1205050003-U-1, slip
op. (M.S.P.B. Apr. 18, 2005) (“Regulation Review Decision”). We dismiss for lack of
jurisdiction.
DISCUSSION
I.
On August 23, 1999, Mr. Frederick applied for a position as a District
Adjudication Officer (“DAO”) with the Immigration and Naturalization Service (“INS”).1
Frederick v. Dep’t of Justice, No. SF0731020088-I-1, slip op. at 2 (M.S.P.B. Mar. 28,
2002) (“Unsuitability Initial Decision”). Upon receiving Mr. Frederick’s application, INS
performed a background investigation of Mr. Frederick. Id., slip op. at 2-3. Based on
reports of misconduct and negligence in his previous employment, INS issued a
negative suitability determination. Id., slip op. at 2. Thereafter, in due course, Mr.
Frederick was rated as ineligible for the DAO position and was debarred from applying
for any INS positions for one year. Mr. Frederick appealed INS’s decision to the Board.
In an initial decision dated March 28, 2002, the Board affirmed the decision of
INS finding Mr. Frederick unsuitable for the DAO position. Id., slip op. at 1. Under 5
C.F.R. § 1201.113, the initial decision became the final decision of the Board on
September 29, 2003, when the Board denied Mr. Frederick’s petition for review of the
Unsuitability Initial Decision. Frederick v. Dep’t of Justice, No. SF0731020088-I-1, slip
op. (M.S.P.B. Sept. 29, 2003) (“Unsuitability Final Decision”). Mr. Frederick did not
appeal the Unsuitability Final Decision.
After his appeal of the adverse personnel action was rejected by the Board, Mr.
Frederick petitioned the Board for regulation review pursuant to 5 U.S.C. § 1204(f). In
the petition, Mr. Frederick alleged that INS had committed a prohibited personnel
1
INS was formerly a part of the Department of Justice. Effective March 1,
2003, INS became a part of the Department of Homeland Security (“DHS”). 6 U.S.C.
§ 291 (2000). The Bureau of Immigration and Customs Enforcement within the DHS
assumed the duties of the former INS.
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practice through its implementation of the regulations set forth at 5 C.F.R. Part 731
when it found him unsuitable for the DAO position. Regulation Review Decision, slip op.
at 2.
The Board found that Mr. Frederick’s request for regulation review was in
essence a second challenge to the unsuitability determination that had been previously
appealed to the Board. Id. The Board stated that it would not exercise its discretionary
power to conduct a regulation review when the review sought was merely an attempt to
relitigate claims that were, or could have been, brought in a prior action. Id., slip op. at
3. Because Mr. Frederick could have argued that the INS’s implementation of the
regulations set forth at 5 C.F.R. Part 731 was improper in his prior suit challenging the
unsuitability determination, the Board concluded that his request for regulation review
was barred by the doctrine of res judicata. Id. Accordingly, the Board denied Mr.
Frederick’s request for regulation review. This appeal followed.
II.
The government argues that we lack jurisdiction to review the Board’s denial of
Mr. Frederick’s request for regulation review because 5 U.S.C. § 1204(f) gives the
Board the “sole discretion” to determine whether to grant a petition for regulation review.
Relying on Clark v. Office of Personnel Management, 95 F.3d 1139, 1142 (Fed. Cir.
1996), Mr. Frederick counters that we have jurisdiction to review a denial of a request
for regulation review when the Board reaches the merits of the underlying claims. Mr.
Frederick argues that the Board exercised authority with respect to the merits of his
request for regulation review by deciding that his request was barred by the doctrine of
05-3218 3
res judicata. For the following reasons, we agree with the government that we lack
jurisdiction over Mr. Frederick’s appeal.
Section 2104(f)(1)(B) provides that the Board has the “sole discretion” to grant or
deny a petition for regulation review filed by “any interested person.” Accordingly, the
Board’s decision to deny a petition for regulation review is not appealable. Id. at 1141.
However, once “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.” Id. at 1142
(finding that a denial of a petition for regulation review addressed the merits of a claim
because it advanced a particular interpretation of a statute and was therefore
appealable). In contrast, we lack jurisdiction to review a denial of a petition for
regulation review when the Board’s decision does not reach the merits of a claim. See
Delos Santos v. Office of Pers. Mgmt., 289 F.3d 1382, 1384 (Fed. Cir. 2002).
The present case involves similar facts as Delos Santos. In Delos Santos, the
Board denied Ms. Delos Santos’s petition for regulation review because she failed to
adequately plead that the agency’s implementation of its regulation resulted in a
prohibited personnel practice. Id. at 1383. We held that we lacked jurisdiction over Ms.
Delos Santos’s subsequent appeal because the Board denied her request due to a
procedural flaw in her petition for regulation review and did not reach the merits of her
claim. Id. at 1384. Similar to Delos Santos, the Board did not consider the merits of Mr.
Frederick’s claim that the Board’s implementation of the regulations at 5 C.F.R. Part 731
was improper. Instead, the Board decided that under the doctrine of res judicata Mr.
Frederick’s arguments should have been brought as part of his earlier appeal of the
adverse personnel action rather than in a petition for regulation review. Regulation
05-3218 4
Review Decision, slip op. at 3. Therefore, we lack jurisdiction over Mr. Frederick’s
appeal because the Board did not consider the merits of his petition for regulation
review. See Clark, 95 F.3d at 1141 (noting that a denial of a petition for regulation
review would not be appealable in a situation where the Board declined review because
the issue could be more appropriately addressed in an appeal of an adverse personnel
action).
For the foregoing reasons, Mr. Frederick’s appeal from the decision of the Merit
Systems Protection Board denying his petition for regulation review is dismissed for lack
of jurisdiction.
No costs.
05-3218 5