Francisco Viado, Petitioner, v. Office of Personnel Management, Respondent, 907 F.2d 159 (Fed. Cir. 1990)

Petitioner seeks review of a decision of the Merit Systems Protection Board (MSPB or Board), in Docket No. SE08318910811, which dismissed his appeal on the ground that it was barred by the doctrine of res judicata. We affirm the decision of the MSPB.

OPINION

The record shows that Mr. Viado was a federal employee from October 10, 1945, to June 7, 1948, and from January 30, 1952 to February 16, 1973. However, no civil service retirement deductions were taken during any part of this service. On January 30, 1952, he received an excepted indefinite appointment, which is expressly excluded from coverage under the Civil Service Retirement Act.

Mr. Viado applied to the Civil Service Commission (now Office of Personnel Management) for a civil service retirement annuity on December 3, 1975. His application was rejected on January 6, 1976, on the ground that he had failed to establish that he had five years of creditable service under the Civil Service Retirement Act. After he had made several requests for review of the initial decision, the Commission's Appeals Review Board issued a final administrative decision on December 15, 1978. There is no evidence that the Appeals Review Board ever re-opened that decision, or that Mr. Viado filed suit in any court to set aside the final administrative decree.

On August 28, 1989, Mr. Viado appealed the unfavorable decision of the Civil Service Commission to the MSPB, which dismissed the appeal on the ground that as a result of the final decision of the Appeals Review Board, his appeal was barred under the doctrine of res judicata.

Since the merits of Mr. Viado's claim had been considered and finally resolved by the Appeals Review Board, it is clear that his 1989 appeal to the MSPB was barred by the doctrine of res judicata. Young Eng'rs, Inc. v. United States Int'l Trade Comm'n, 721 F.2d 1305, 1314 (Fed. Cir. 1983).