Tamayo v. Office of Personnel Management

ORDER MICHEL, Circuit Judge. Rosario Tamayo responds to the issue of whether her petition for review should be dismissed. Tamayo petitions this court for review of a Merit Systems Protection Board decision denying her request for a survivor annuity under the Civil Service Retirement System (CSRS) based on the service of her late husband. In the initial decision, the administrative judge determined that Ta-mayo was not entitled to a CSRS survivor annuity because her late husband’s service was pursuant to a series of excepted indefinite appointments. See Casilang v. Office of Personnel Management, 248 F.3d 1381 (Fed.Cir.2001) (Executive Order 10,530 kept in place exclusion of nonpermanent employees from CSRA until new regulations promulgated in 1956); Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed.Cir.1995) (upholding OPM’s statutory interpretation that indefinite appointments are excluded from Civil Service Reform Act coverage as reasonable and consistent with the governing statute, 5 U.S.C. § 8347(g)). Tamayo argues in her response that her case differs from Rósete because her late husband’s employment was “converted” into covered service by the 1956 CSRA. We conclude that this and Tamayo’s remaining arguments fall within the holdings of Rósete and Casilang. Tamayo’s petition seeks review of issues that were conclusively decided in Rósete. This court has denied suggestions for rehearing en banc in Rósete and in dozens of other cases that argued that Rósete was wrongly decided. Thus, any further attempts to argue the merits of Rósete are deemed frivolous and an abuse of the judi [477] cial process. Furthermore, if Tamayo files another document with this court and, upon review, it is determined that the arguments are frivolous, this court will consider the imposition of monetary sanctions. See In re Solerwitz, 848 F.2d 1573, 1575 (Fed.Cir.1988) (counsel sanctioned for filing and maintaining frivolous appeals in air traffic controller cases that presented legal issues and fact patterns indistinguishable from those presented and decided in the precedents represented by the lead cases); see also Pillay v. Immigration and Naturalization Serv., 45 F.3d 14, 17 (2d Cir.1995) (appellate court has inherent authority to dismiss appeal as frivolous when appeal presents no arguably meritorious issue for consideration). Accordingly, IT IS ORDERED THAT: (1) Tamayo’s petition for review is dismissed. (2) Tamayo’s motion for leave to proceed in forma pauperis is moot. (3) Each side shall bear its own costs. (4) If Tamayo files another document with this court and, upon review, it is determined that the arguments are frivolous, this court will consider the imposition of monetary sanctions.