                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2006-3298


                                  LOUIS J. DE MAIO,

                                                             Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.


      Louis J. De Maio, of Bel Air, Maryland, pro se.

       Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Mark A. Melnick, Assistant Director.

Appealed from: Merit Systems Protection Board
                           NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit

                                               2006-3298

                                         LOUIS J. DE MAIO,

                                                                           Petitioner,

                                                     v.

                           OFFICE OF PERSONNEL MANAGEMENT,

                                                                           Respondent.

Petition for review of the Merit Systems Protection Board in PH-0831-06-0036-I-1.
                            ___________________________

                                  DECIDED: November 5, 2009
                                 ___________________________


Before MAYER and RADER, Circuit Judges, and WILKEN, District Judge. *

PER CURIAM.

        The Merit Systems Protection Board (“MSPB” or “Board”) affirmed the Office of

Personnel Management’s (“OPM’s”) denial of Mr. De Maio’s request for an additional

retirement annuity based upon voluntary contributions to his individual retirement

account. OPM denied his request because it concluded that it could not provide an

additional retirement annuity to Mr. De Maio unless and until he applies for, and

receives, his Civil Service Retirement System (“CSRS”) annuity. Because the Board did

not abuse its discretion and its findings were not arbitrary and capricious, contrary to law, or

otherwise reversible, this court affirms.

*
    The Honorable Claudia Wilken, District Judge, United States District Court for the Northern District of
California, sitting by designation.
                                            I.

       Mr. De Maio was a federal employee with the Department of the Treasury from

1967 until his termination in April 2005. App. A at 2. In March 1993, Mr. De Maio

elected to make voluntary contributions to his CSRS individual retirement account for

receipt of greater benefits, in the form of an additional CSRS annuity, at retirement.

See 5 C.F.R. 831.403 (2005).

       Shortly after his removal from federal service, Mr. De Maio requested that OPM

permit him to purchase an additional annuity using his voluntary contributions. OPM

denied his request, stating that the law does not permit an employee to receive

additional annuity based upon voluntary contributions without receiving, or having

applied for, CSRS benefits.     App A at 2.      OPM denied Mr. De Maio’s request for

reconsideration in October 2005.

       Mr. De Maio later filed a petition with the MSPB in October 2005, challenging the

OPM’s decision denying his voluntary contributions election under the CSRS.           The

MSPB issued an initial decision in January 2006, affirming OPM's determination. See

App. A at 1–7, 3 (quoting 5 U.S.C. § 8343(b): “[t]he voluntary contribution account is

used to purchase at retirement an annuity in addition to the annuity otherwise

provided”). The full board denied Mr. De Maio's petition for review.

       Mr. De Maio appealed to this court, which dismissed his appeal in July 2006 for

failure to pay the docketing fee. Nearly three years later, on May 19, 2009, this court

reinstated Mr. De Maio's appeal, noting in the order that he paid the filing fee, albeit to

the wrong court.




2006-3298                                   2
      In his opening brief to this court, Mr. De Maio includes a challenge to the

propriety of the Internal Revenue Service’s (“IRS”) decision to remove him from federal

service. The IRS removed Mr. De Maio from employment on April 29, 2005, in part

because his position required a license to practice law. In 2004, the State of Maryland

disbarred Mr. De Maio; the District of Columbia suspended his license to practice law

based upon his disbarment in Maryland. App. B. at 2–4. Mr. De Maio appealed his

removal to the MSPB, which docketed his appeal as De Maio v. Dep’t of Treasury, PH-

0752-05-0394-I-1. See App. B at 1–9. In an initial decision dated August 18, 2005, the

administrative judge affirmed Mr. De Maio’s removal, finding that he engaged in “serious

misconduct.” App. B. at 9. The full board denied Mr. De Maio’s petition for review. See

De Maio v. Dep’t of Treasury, 101 M.S.P.R. 131 (Table) (M.S.P.B. Jan. 4, 2006)

(unpublished denial of petition for review).     This court dismissed Mr. De Maio’s

corresponding appeal in June 29, 2006, for his failure to file and serve an appeal brief.

See De Maio v. Dep’t of the Treasury, 189 Fed. Appx. 959 (Fed. Cir. 2006).

      Mr. De Maio filed a timely petition of the Board’s final decision in the present

case. This court has jurisdiction under 28 U.S.C. 1295(a)(9).

                                           II.

      This court must affirm the Board’s decision unless it is “(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 substantial evidence.” 5 U.S.C. § 7703(c) (1998); see also Chase-Baker v. Dep’t of

Justice, 198 F.3d 843, 845 (Fed. Cir. 1999).




2006-3298                                  3
      Mr. De Maio contests the Board’s decision affirming OPM’s determination that he

could not receive a retirement annuity based upon voluntary contributions, without also

applying for and receiving his CSRS annuity. Pet. Br. at 6. Mr. De Maio does not show

that the Board’s decision with respect to his voluntary contributions was arbitrary,

capricious, or contrary to law. No statutory or regulatory provision allows OPM to pay

Mr. De Maio a retirement annuity based upon his voluntary contributions, unless he also

applies for and receives his CSRS annuity. As the MSPB noted, 5 C.F.R. § 831.407(a)

states that “[a]t the time of retirement [under] CSRS (or under FERS, if transferred from

CSRS), . . . a person may use the balance of a voluntary contribution account to

purchase . . . additional annuity. . . .” 5 C.F.R. § 831.407(a) (emphasis added). This

language is unambiguous. “At the time of retirement” and “additional” mean that an

annuity based on voluntary contributions only applies when the annuitant also applies

for a civil service retirement annuity.   Accord 5 U.S.C. § 8343(b) (“The voluntary

contribution account is used to purchase at retirement an annuity in addition to the

annuity otherwise provided.”) (emphasis added).

      Mr. De Maio further contends that he should not be required to apply for CSRS

annuity because doing so would prejudice his challenge to his termination by the

Department of Treasury. Pet. Br. at 6. This claim fails for two reasons. First, under 5

U.S.C. § 7701(j), “[i]n determining the appealability under this section of any case

involving a removal from the service (other than the removal of a reemployed

annuitant), neither an individual’s status under any retirement system established by or

under Federal statute nor any election made by such individual under any such system

may be taken into account.” 5 U.S.C. § 7701(j); see also Mays v. Dep’t of Transp., 27




2006-3298                                  4
F.3d 1577, 1579 (Fed. Cir. 1994) (“The plain language of section 7701(j) means that

retirement status cannot be taken into account in determining the appealability of ‘any

case involving a removal.’”). Accordingly, § 7701(j) prevents this court from considering

Mr. De Maio’s CSRS status in conjunction with the IRS’s decision to remove him from

federal service.

       Second, Mr. De Maio’s claims with respect to his termination are barred by res

judicata. Mr. De Maio contested his removal and received a final decision on the merits

in a different appeal from the MSPB. Res judicata prevents parties from litigating issues

that were, or could have been, raised in a prior action. Carson v. Dep’t of Energy, 398

F.3d 1369, 1375 (Fed. Cir. 2005). The doctrine serves to “relieve parties of the cost and

vexation of multiple lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudication.”       Id. (quoting Allen v.

McCurry, 449 U.S. 90, 94 (1980)). Res judicata applies if (1) the prior decision was

rendered by a forum with competent jurisdiction; (2) the prior decision was a final

decision upon the merits; and (3) the same cause of action and the same parties or their

privies were involved in both cases. Carson, 398 F.3d at 1375.

       Mr. De Maio’s claims regarding his removal are barred by res judicata because:

(1) a forum with competent jurisdiction rendered the MSPB's decision; (2) the decision

was final on the merits; (3) the cause of action was between the same parties; and (4)

Mr. De Maio asserted, or could have asserted, the same claims that he now raises.

“Matters resolved by a final decision in a prior appeal are res judicata and are not

properly before the Board in subsequent appeals.” Van Sant v. U.S. Postal Serv., 39

M.S.P.R. 408, 412 (M.S.P.B. 1989). Therefore, in addition to § 7701(j), Mr. De Maio’s




2006-3298                                  5
challenge to his removal and the relief that he seeks in connection with his removal are

barred under the doctrine of res judicata.

       Mr. De Maio asserts claims for back pay, accrued interest, punitive damages

against the government, and attorney fees regarding the IRS’s failure to promote him

and the revocation of his flexiplace agreement—a program that allowed him to work

from home. Pet. Br. at 3. The Board was without jurisdiction to consider these claims.

“There is no law, rule, or regulation giving the Board jurisdiction over an agency’s

flexiplace (flexible work place or alternate work place) decisions.” Gore v. Dep’t of

Labor, 101 M.S.P.R. 320, 322 (M.S.P.B. 2006); see also 5 U.S.C. § 7512 (not listing

work location decisions as among the adverse actions that may be appealed to the

Board under 5 U.S.C. § 7513). Likewise, “no law, rule, or regulation authorizes a direct

appeal to the Board respecting a nonselection for promotion.” Ellison v. Merit Sys. Prot.

Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). Because the Board did not have jurisdiction

over these claims, this court is without jurisdiction to consider them.

       Finally, Mr. De Maio contends that the MSPB denied him due process.             He

asserts that human judges versus computers of the MSPB denied his request to stay

OPM’s reconsideration decision, as well as his petition for review by the full board. Pet.

Br. 7–8. Because Mr. De Maio has not shown that OPM or the MSPB exhibited “a

deep-seated favoritism or antagonism that would make fair judgment impossible,” this

court need not address this claim. See Bieber v. Dep’t of the Army, 287 F.3d 1358,

1361–63 (Fed. Cir. 2002).




2006-3298                                    6
       For these reasons, this court finds that the MSPB did not abuse its discretion and

its findings were not arbitrary and capricious, contrary to law, or otherwise reversible and

affirms its final decision in this case.

                                           AFFIRMED

       No costs.




2006-3298                                     7
