                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     QUIRINO B. ESTABILLO,                           DOCKET NUMBER
                   Petitioner,                       CB-1205-15-0030-U-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 14, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rizalino S. Cayle, Olongapo City, Philippines, for the petitioner.

           Stephanie Fekete, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The petitioner asks the Board, pursuant to 5 U.S.C. § 1204(f), to review a
     regulation of the Office of Personnel Management (OPM) at 5 C.F.R.
     § 831.201(a)(13). For the reasons discussed below, we DENY the petitioner’s
     request as barred by res judicata.


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       DISCUSSION
¶2         The Board has original jurisdiction to review rules and regulations
     promulgated by OPM. 5 U.S.C. § 1204(f). The Board is authorized to declare an
     OPM rule or regulation invalid on its face if the Board determines that the
     provision would, if implemented by an agency, require any employee to violate a
     prohibited personnel practice as defined by 5 U.S.C. § 2302(b).        See 5 U.S.C.
     § 1204(f)(2)(A). The Board’s regulations require an individual requesting such
     review to describe specifically how the regulation would require a prohibited
     personnel practice and to identify the specific prohibited personnel practice
     alleged. 5 C.F.R. § 1203.11(b)(1)(iii-iv).
¶3         The petitioner contends that 5 C.F.R. § 831.201(a)(13) violates 5 U.S.C.
     § 8347(g), which authorizes OPM to exclude from civil service retirement
     coverage employees whose employment is temporary or intermittent, because the
     regulation excludes from such coverage employees like the petitioner who served
     under an indefinite appointment made after January 23, 1955. 2 The petitioner
     contends that, by erroneously defining temporary appointments to include
     indefinite appointments in violation of section 8347(g), OPM’s regulation
     requires the commission of a prohibited personnel practice under 5 U.S.C.
     § 2302(b)(11). According to the petitioner, section 8347(g) is a statute within the
     meaning of section 2302(b)(11) that implements or directly concerns the merit
     system principle providing that employees should be protected against arbitrary
     actions. See 5 U.S.C. § 2301(b)(8)(A).
¶4         In its response to the petitioner’s request, OPM asks the Board to dismiss
     the petitioner’s request for lack of jurisdiction or to deny the request because the
     issues that are raised by the petitioner are barred by res judicata. As to the latter
     argument, OPM notes that the petitioner has presented this same claim several

     2
       The petitioner was employed periodically from 1960 until his retirement in 1991 by
     the Department of the Navy in Subic Bay, the Philippines. Estabillo v. Office of
     Personnel Management, No. 94-3552, 1995 WL 413204 (Fed Cir. July 17, 1995).
                                                                                           3

     times to the Board, first in an appeal of OPM’s denial of his initial request for
     retirement benefits and subsequently in three requests for review of the OPM
     regulation at issue here.
¶5         The Board’s decision rejecting this claim in the petitioner’s appeal from
     OPM’s denial of retirement benefits was summarily affirmed by the U.S. Court of
     Appeals for the Federal Circuit, see Estabillo, 1995 WL 413204; supra n.2, citing
     its precedential decision on this issue in Rosete v. Office of Personnel
     Management, 48 F.3d 514 (Fed. Cir. 1995). The petitioner’s previous regulation
     review requests based on the same claim were denied by the Board on res judicata
     grounds, and the two decisions that were appealed were dismissed by the Federal
     Circuit.   See Estabillo v. Office of Personnel Management, 71 M.S.P.R. 567
     (1996) (Table); Estabillo v. Office of Personnel Management, 82 M.S.P.R. 15
     (1999); Estabillo v. Office of Personnel Management, 100 M.S.P.R. 560 (2005).
¶6         The doctrine of res judicata precludes a second action involving the same
     parties and based on the litigation of claims that were, or could have been,
     asserted in a prior proceeding. See Nevada v. United States, 463 U.S. 110, 130
     (1983); Spears v. Merit Systems Protection Board, 766 F.2d 520, 523 (Fed. Cir.
     1985); Francisco v. Office of Personnel Management, 80 M.S.P.R. 684, 686
     (1999). The petitioner’s claim here is identical to the claim he has previously
     litigated, and he has not shown that any additional argument he is attempting to
     present in this case could not have been raised in the first of these proceedings.

                                           ORDER
¶7         Accordingly, we dismiss the petitioner’s request for regulation review
     because it is barred by the doctrine of res judicata. This is the final decision of
     the Merit Systems Protection Board in this proceeding. Title 5 of the Code of
     Federal Regulations, section 1203.12(b) (5 C.F.R. § 1203.12(b)).
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                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:
                             U.S. 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
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
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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.
