                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LENNIS REYNOLDS,                                DOCKET NUMBER
                  Appellant,                         CH-0841-15-0514-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 20, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Lennis Reynolds, Racine, Wisconsin, pro se.

           Kristine Prentice, 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 appeal of a June 22, 2010 reconsideration decision issued by the
     Office of Personnel Management (OPM) denying his request for an annuity
     supplement under Federal Employees’ Retirement System (FERS). Generally, we


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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).
¶2             On June 22, 2010, OPM issued a final decision finding that the appellant
     was not entitled to an annuity supplement under FERS. Initial Appeal File (IAF),
     Tab 7 at 31. The appellant filed an appeal with the Board on July 7, 2010, and
     the administrative judge issued an initial decision on November 5, 2010,
     affirming OPM’s decision.             Id. at 6; see Reynolds v. Office of Personnel
     Management, No. CH-0841-10-0788-I-1, Initial Decision (Nov. 5, 2010). After
     the Board issued a final order on May 17, 2011, which denied the appellant’s
     petition for review of the initial decision, he exercised his right to request that the
     U.S. Court of Appeals for the Federal Circuit review the Board’s decision.         IAF,
     Tab 7 at 10-14.         The court dismissed the appellant’s petition for review on
     August 25, 2011, for failure to prosecute. Id. at 10.
¶3             On June 10, 2015, the appellant filed a new appeal with the Board seeking
     to again challenge OPM’s June 22, 2010 final decision.               IAF, Tab 1.    The
     appellant argued that he has “new evidence,” which merely consists of his
     disagreement with OPM’s decision and his argument that he is entitled to an
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     annuity supplement pursuant to 5 U.S.C. § 8421.             Id. at 5-6, 9.      The
     administrative judge ordered the appellant to file evidence and argument showing
     good cause why his appeal should not be dismissed because it appeared that the
     matter he raised on appeal was previously adjudicated, and therefore barred by
     the doctrine of res judicata. IAF, Tab 3.
¶4        OPM responded to the order by arguing that “the issue on appeal had
     already been litigated, [and that] further litigation is precluded by the principles
     of res judicata.” IAF, Tab 7 at 4. OPM also submitted documentation proving
     that the appellant had already sought review of OPM’s June 22, 2010 final
     decision to the Board and the court without success. Id. at 10-35. The appellant
     offered no argument in opposition to dismissing his appeal as barred by
     res judicata, although he argued that he filed a timely appeal after he obtained
     new evidence. IAF, Tab 5 at 3.
¶5        The administrative judge issued an initial decision dismissing the appeal as
     barred by the doctrine of res judicata, finding that the appellant received a prior
     decision on the merits of OPM’s reconsideration decision by a forum of
     competent jurisdiction.   IAF, Tab 8, Initial Decision (ID) at 3.    The appellant
     filed a petition for review arguing the merits of his appeal, and OPM responded in
     opposition to his petition. Petition for Review (PFR) File, Tabs 1, 4.
¶6        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). On review, the appellant merely argues the merits of his appeal without
     disputing the administrative judge’s finding that his appeal is barred by the
     doctrine of res judicata. PFR File, Tab 1 at 4-5; ID at 3. We find no reason to
     disturb the administrative judge’s finding that res judicata applies to bar this
     appeal because it is undisputed that: (1) the appellant could have raised the same
     arguments in his last appeal of OPM’s June 22, 2010 final decision; (2) he
     received a prior judgment on the merits of OPM’s final decision by a forum with
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competent jurisdiction; and (3) the record reflects that his appeals involved the
same cause of action and the same parties or their privies. ID at 2; see IAF,
Tabs 7-8; Peartree, 66 M.S.P.R. at 337.      We therefore deny the petition for
review of the initial decision that dismissed this appeal as barred by the doctrine
of res judicata.

                   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
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.
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      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.
