Robert A. Head, Petitioner, v. Office of Personnel Management, Respondent, 979 F.2d 217 (Fed. Cir. 1993)

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US Court of Appeals for the Federal Circuit - 979 F.2d 217 (Fed. Cir. 1993) Sept. 28, 1992. Rehearing Denied Jan. 7, 1993

Before ARCHER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PLAGER, Circuit Judge.

PER CURIAM.


DECISION

Robert A. Head (Head) seeks review of an initial decision of the Administrative Judge (AJ) (No. SE831E9010299, dated July 30, 1990), which became final when the Merit Systems Protection Board (board) denied review on November 9, 1990, dismissing his appeal because "the matters raised by [Head] are not presently within the board's jurisdiction." We affirm.

DISCUSSION

Head challenges the board's March 25, 1988 final decision in Head v. OPM, No. SE831L8710376, 36 M.S.P.R. 437, affirming the determination of the OPM and AJ that he had recovered from his disability and that his annuity should be terminated. This issue was finally adjudicated and pursuant to principles of res judicata may not be relitigated here.

Head further challenges an OPM decision denying waiver of an annuity overpayment recovery. This issue was raised and dismissed as outside this court's jurisdiction in Head v. OPM, No. 91-3008 (Fed. Cir. April 21, 1991) because, at that time, the issue had been remanded to OPM for reconsideration. OPM's reconsideration decision again denying the waiver request is currently pending before the board's regional office in Head v. OPM, No. SE-831M-92-0075-I-1. This court has jurisdiction to review only final orders and decisions of the board, 5 U.S.C. 7703(a) (1) (1988), a requirement clearly not met here.

Finally, Head makes a claim for reinstatement of his annuity. This issue is currently before OPM on reconsideration. As such, there is no OPM final decision, a prerequisite to the board's, and in turn, this court's jurisdiction. See 5 C.F.R. § 831.110.

The AJ carefully reviewed the record and correctly determined that each of the matters raised by Head was not within the MSPB's jurisdiction. Head stated in his reply brief that this court has jurisdiction over "any agency action, findings, and conclusions" of both the MSPB and OPM. This court previously advised Head in clear and unambiguous language that "we review only final orders and decisions of the board. " Head v. OPM, No. 91-3008, slip op. at 1 (emphasis added and in original). Head blatantly ignored this admonishment in filing the instant appeal. We will not hesitate to impose a sanction against a pro se petitioner who disregards the clear instructions of this court. We therefore warn Head that he must obtain a final decision or order of the board before again appealing to this court; otherwise a sanction will be imposed against him under Rule 38 of the Federal Rules of Appellate Procedure.

We affirm the decision because it is not arbitrary, capricious, an abuse of discretion, procedurally defective, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c); Cheeseman v. OPM, 791 F.2d 138, 140 (Fed. Cir. 1986).