Elperio R. Esguerra, Petitioner, v. Office of Personnel Management, Respondent, 92 F.3d 1204 (Fed. Cir. 1996)

ORDER

On April 12, 1996, we directed Elperio R. Esguerra to respond within 30 days to the issue of whether his petition for review should be dismissed as frivolous. Esguerra opposes. The Office of Personnel Management (OPM) submits a response. We treat Esguerra's submission entitled "Petitioner's Reply in Opposition to the Respondent's Reply" as a motion for leave to file a reply, with reply attached.

In our April 12, 1996 order, we questioned whether Esguerra's petition for review was frivolous because his sole argument was that Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed. Cir. 1995), was wrongly decided. We noted that this court has denied suggestions for rehearing in banc in Rosete and in at least forty-one other cases in which the petitioner argued that Rosete was wrongly decided. We instructed Esguerra that any further attempts to argue the merits of Rosete could be deemed an abuse of the judicial process.

In his response, Esguerra contends that his case is not frivolous because it presents issues and arguments that differ from those addressed in Rosete. However, Esguerra argues only that this court has not "finally resolved" the validity of OPM's regulations interpreting "temporary" as including indefinite appointments. See 5 C.F.R. § 831.201(a) (12)-(13). This was the precise issue decided in Rosete. Because Esguerra's case does not present any legal issues or fact patterns distinguishable from those presented and decided in Rosete and numerous other cases, we conclude that Esguerra's petition for review is frivolous and must be dismissed. Further, we conclude that Esguerra's persistent challenge to the correctness of Rosete is an abuse of the judicial process. If Esguerra files another document with this court and, upon review, it is determined that his arguments are frivolous, this court will consider the imposition of monetary sanctions.

Accordingly,

IT IS ORDERED THAT:

(1) Esguerra's motion for leave to file a reply is granted.

(2) Esguerra's pending motion for leave to proceed in forma pauperis is denied.

(3) Esguerra's petition for review is dismissed.

(4) If Esguerra files another document with this court and, upon review, it is determined that his arguments are frivolous, this court will consider the imposition of monetary sanctions.

(5) Each side shall bear its own costs.