Jose F. Gonzalo v. Office of Personnel Management

980 F.2d 745 NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Jose F. GONZALO, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 92-3148. United States Court of Appeals, Federal Circuit. Oct. 28, 1992. Before RICH, MAYER and MICHEL, Circuit Judges. DECISION PER CURIAM. [1] Jose F. Gonzalo (Mr. Gonzalo) appeals from the November 15, 1991, Initial Decision of the Administrative Judge of the Merit Systems Protection Board (MSPB or the Board), Docket No. SE0831910575I-1, dismissing his appeal on the ground that his claim was barred by res judicata, which became the final decision of the Board on December 19, 1991, when no further action was taken by Mr. Gonzalo by that date. We affirm. OPINION [2] In 1988, Mr. Gonzalo applied to the Office of Personnel Management (OPM) for retirement benefits under the Civil Service Retirement Act (CSRA). OPM denied the application because appellant was unable to show that he had completed five years of creditable service required by the CSRA. Mr. Gonzalo appealed OPM's decision to the Merit Systems Protection Board. On September 19, 1989, the Denver Regional Office of the MSPB issued an initial decision (Docket No. SE088318910504) affirming OPM's disallowance of the annuity. The MSPB denied Mr. Gonzalo's petition for review, and the decision of the regional office became final on February 26, 1990. Mr. Gonzalo then sought review of the matter before this court, where the MSPB's decision was affirmed on November 15, 1990, in Gonzalo v. Office of Personnel Management, 923 F.2d 870 (Fed.Cir.1990). [3] On September 16, 1991, Mr. Gonzalo filed an appeal with the MSPB, requesting that the Board again review OPM's denial of his claim for benefits under the CSRA. The MSPB dismissed the appeal on grounds of res judicata. [4] Mr. Gonzalo now appeals to this court to "reconsider their action" and take into account his service record in order to determine his eligibility to receive benefits under the CSRA. What appellant fails to understand is that review of final decisions of the MSPB by this court is narrowly defined and limited by statute. 5 U.S.C. § 7703(c); Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). And, in this case, review is limited simply to the determination of whether the MSPB correctly dismissed Mr. Gonzalo's appeal as res judicata.1 Footnotes [1] The Board incorrectly characterized the basis of its dismissal for lack of jurisdiction. However, because the res judicata basis for the dismissal was correct, the mischaracterization of it as jurisdictional was, in fact, harmless error