UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRESENCIO L. FONTILA, DOCKET NUMBER
Appellant, SF-0831-15-0461-I-1
v.
OFFICE OF PERSONNEL DATE: January 21, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rufus F. Nobles, I, Zambales, Philippines, for the appellant.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his retirement appeal on the basis of res judicata. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant was employed by the Department of the Navy in Subic Bay,
Philippines, on various dates during the period from November 29, 1967 to
February 21, 1986. Initial Appeal File (IAF), Tab 5 at 36-44. His Standard
Form 50s from this period of employment indicate his retirement plan as either
4 or 5 for “none” or “other,” respectively. Id. Upon his termination based on his
physical inability to perform the duties of his position, the appellant was entitled
to 18 months of severance pay based on 18 years, 2 months, and 23 days of
creditable service and a lump sum payment for his sick leave balance. Id. at 36.
¶3 On July 3, 2007 and October 6, 2008, the appellant applied to make a
deposit through the Civil Service Retirement System (CSRS) for his prior service
from July 1, 1968, to February 21, 1986. IAF, Tab 6 at 18, 21, 33. On
August 12, 2009, the Office of Personnel Management (OPM) issued an initial
decision denying the appellant’s application to make a deposit for prior service.
Id. at 35. After the appellant requested reconsideration of the initial decision,
OPM issued a reconsideration decision determining that he was not eligible to
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make a deposit. Id. at 33-34. He subsequently filed an appeal to the Board, and
the administrative judge issued an initial decision affirming OPM’s decision.
Fontilla v. Office of Personnel Management, MSPB Docket No. SF-0831-11-
0050-I-1, Initial Decision (0050 ID) at 2, 11 (Jan. 24, 2011) 2; IAF, Tab 6 at 19,
28. The appellant filed a petition for review, which the Board denied in a final
order. Fontilla v. Office of Personnel Management, MSPB Docket No. SF-0831-
11-0050-I-1, Final Order at 2-3 (Sept. 7, 2011) (0050 Final Order); IAF, Tab 6
at 15-16. He sought further review from the U.S. Court of Appeals for the
Federal Circuit, which affirmed the Board’s decision. Fontilla v. Office of
Personnel Management, 482 F. App’x 563, 565 (Fed. Cir. 2012); IAF, Tab 6
at 10-11.
¶4 On April 12, 2013, the appellant applied for a deferred CSRS retirement
annuity based on his service performed from November 29, 1967 to February 21,
1986. IAF, Tab 5 at 34-35. OPM denied his application on December 6, 2013,
id. at 30, and the appellant requested reconsideration, id. at 14-23. On
February 9, 2015, OPM issued a reconsideration decision affirming its denial. Id.
at 10-12. The appellant subsequently filed this Board appeal challenging OPM’s
reconsideration decision, and he did not request a hearing. IAF, Tab 1. During
the course of the appeal, OPM rescinded its December 6, 2013 initial decision and
February 9, 2015 reconsideration decision under the doctrine of res judicata and
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 4-5. The
administrative judge issued an Order to Show Cause informing the appellant that
she was considering taking jurisdiction over the appeal and dismissing it under
the doctrine of res judicata. IAF, Tab 9 at 1. She ordered the appellant to show
2
The initial decision and subsequent decisions on appeal use an incorrect spelling of
the appellant’s last name.
4
cause why the appeal should not be dismissed on this basis. 3 Id. at 2. Based on
the written record, the administrative judge issued an initial decision finding that
the Board has jurisdiction over the appeal and dismissing the appeal based on res
judicata. IAF, Tab 10, Initial Decision (ID) at 2, 4-5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition, PFR File, Tab 4, to
which the appellant has replied, PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this appeal.
¶6 In his petition for review, the appellant argues that the Board lacks
jurisdiction over this appeal because OPM rescinded its initial and final
decisions. PFR File, Tab 5 at 1-2. We disagree.
¶7 The Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the CSRS only after OPM has issued a final
decision, also known as a reconsideration decision. 5 U.S.C. § 8347(d); Morin v.
Office of Personnel Management, 107 M.S.P.R. 534, ¶ 8 (2007), aff’d,
287 F. App’x 864 (Fed. Cir. 2008); 5 C.F.R. § 831.110. Once OPM completely
rescinds a reconsideration decision, the Board no longer retains jurisdiction over
the appeal in which that reconsideration decision is at issue. Morin, 107 M.S.P.R.
534, ¶ 8.
¶8 However, as noted above, OPM rescinded its initial and reconsideration
decisions on the grounds of res judicata in its motion to dismiss. IAF, Tab 6
at 4-5. Where, as here, it is apparent that OPM does not intend to issue a new
reconsideration decision that addresses the merits of the appellant’s deferred
retirement application, the Board retains jurisdiction to adjudicate the merits and
3
Although the administrative judge found that the appellant did not submit a response
to her order, it appears that he may have done so, but his response was untimely. IAF,
Tab 9 at 2, Tab 10, Initial Decision at 3, Tab 12.
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considers OPM’s rescission pleading as the final appealable decision. See Morin,
107 M.S.P.R. 534, ¶ 9; Luzi v. Office of Personnel Management, 106 M.S.P.R.
160, ¶ 9 (2007). Thus, the Board has jurisdiction over this appeal.
The administrative judge correctly found that res judicata bars this appeal.
¶9 The administrative judge found that the appeal is barred by res judicata. ID
at 4-5. Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337
(1995). The doctrine precludes the parties from relitigating issues that were, or
could have been, raised in the prior action and is applicable if: (1) the prior
judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Id. For res
judicata to bar a new claim, the new claim must be based on the same set of
transactional facts as the earlier one. Encarnado v. Office of Personnel
Management, 116 M.S.P.R. 301, ¶ 11 (2011); see Jet, Inc. v. Sewage Aeration
Systems, 223 F.3d 1360, 1362-63 (Fed. Cir. 2000) (observing that “courts have
defined ‘transaction’ in terms of a ‘core of operative facts,’ the ‘same operative
facts,’ or the ‘same nucleus of operative facts,’ and ‘based on the same, or nearly
the same, factual allegations’” (citations omitted)). Thus, the Board has held that
a second appeal seeking to make a CSRS deposit was barred by a prior appeal
seeking a CSRS annuity. Encarnado, 116 M.S.P.R. 301, ¶¶ 1, 3-4, 12.
¶10 The appellant argues on review that the prior and current appeals involve
different issues. PFR File, Tab 1 at 1. Specifically, he alleges that the issue in
the current appeal is his right to “waive” a deposit under 5 C.F.R. § 831.303(a)
and receive a reduced annuity, whereas the issue in the prior appeal was his
eligibility to make a deposit to obtain an annuity. Id. Although the appellant
attempts to distinguish these issues, we nevertheless find that both appeals
involve the same cause of action of his entitlement to CSRS annuity benefits. See
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Encarnado, 116 M.S.P.R. 301, ¶¶ 1, 3-4, 12; see also Quiocson v. Office of
Personnel Management, 490 F.3d 1358, 1360 (Fed. Cir. 2007) (finding that an
entitlement to a CSRS retirement annuity requires 5 years of creditable service,
ending with at least 1 of the last 2 years in a position covered by the Civil Service
Retirement Act); 5 U.S.C. § 8333(a)-(b). Section 831.303(a), on which the
appellant relies, concerns the calculation of an employee’s creditable service. It
does not convert his noncovered service into covered service or remove the
covered service requirement under 5 U.S.C. § 8333(b) for an employee’s
entitlement to a CSRS annuity. Cf. Quiocson, 490 F.3d at 1360 (finding that “[a]
retroactive deposit does not convert a non-covered position into a covered
position”). Although the appellant attempts to argue that he served in a covered
position, the Board already determined in his prior appeal that he did not. 0050
Final Order at 2; 0050 ID at 7-9, 11; PFR File, Tab 1 at 3, 6-7; IAF, Tab 6 at 15,
24-26, 28. Thus, the dispositive issue—whether the appellant has covered
service—has already been litigated.
¶11 Further, even if the appellant previously had not raised the issue of his
entitlement to a reduced CSRS annuity under 5 C.F.R. § 831.303(a), he could
have done so in the prior appeal. Accordingly, the causes of action in the prior
and current appeals are the same because both involve the appellant’s goal of
receiving a CSRS retirement annuity. See, e.g., Encarnado, 116 M.S.P.R. 301,
¶ 12. 4
4
The appellant argues that his current appeal concerns a different period of Federal
service than his prior appeal. PFR File, Tab 1 at 1, 7; IAF, Tab 1 at 3. Regardless, we
find that the two appeals are based on the same set of transactional facts. See, e.g.,
Woods v. U.S. Postal Service, 188 F. App’x 1004, 1006-07 (Fed. Cir. 2006) (finding
that a claim of removal in 1991 was barred by res judicata even though it was not the
subject of the appellant’s prior appeal because it was part of a series of events from
1989 to 1993 that she previously litigated); see also Mauldin v. U.S. Postal Service,
115 M.S.P.R. 513, ¶ 12 (2011) (observing that the Board may rely on unpublished
Federal Circuit decisions if it finds the court’s reasoning persuasive). Both retirement
appeals are based on his prior Federal service. IAF, Tab 5 at 34-35, Tab 6 at 18, 33;
0050 ID at 1.
7
¶12 Because the Board had jurisdiction to decide the prior appeal under
5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110, the first criterion for res judicata is
satisfied. 0050 ID at 1-2; IAF, Tab 6 at 18-19. In addition, the second criterion
for res judicata is also satisfied because the prior initial decision on the merits
became final when the Federal Circuit affirmed the Board’s final order, and the
appellant did not seek further review. Fontilla, 482 F. App’x at 565. Finally, the
third criterion is satisfied because, as explained above, the same cause of action
and the same parties were involved in both cases. Supra ¶ 10-11. For these
reasons, we agree with the administrative judge’s finding that this appeal is
barred by res judicata and we affirm the initial decision.
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:
United States 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
8
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
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.