NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3110

FELICIANA T. REYMAN, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Feliciana T. Reyman , of Zambales, Philippines, pro se. David M. Hibey , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justic e, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, and Brian M. Simkin , Assistant Director. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3110 FELICIANA T. REYMAN, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

___________________________ DECIDED: June 7, 2007

___________________________ Before SCHALL, Circuit Judge , PLAGER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Feliciana Reyman (“Feliciana”) appeals from the decision of the Merit Systems Protection Board (“Board”) in SF-0831-06-0491-I-1, dismissing her appeal of a decision by the Office of Personnel Management (“O PM”) denying her request for an increased annuity. We affirm

. BACKGROUND Hilarion D. Reyman (“Hilarion”) worked as an Excepted Service Shipfitter for the Department of the Navy in Subic Bay, Philippines. On August 8, 1975, he was separated from federal service through a disability retirement because he was physically incapable of performing the duties of his position. The Standard Form (“SF”) 50 for this action noted that hi s retirement was not a civil service retirement but instead was a retirement pursuant to the “other” ca tegory and that he was entitled to thirty-twomonths of retirement pay under a collect ive bargaining agreement. On January 5, 1978, Hilarion turned 62 and began receiving a deferred annuity from OPM, which eventually became $51 per month. Although the record is no t entirely clear, the Board found that this annuity was the result of Hilarion’s earlier service at a naval facility in Cavite, Phillipines between 1941 and 1945 rather t han from his work as a shipfitter at Subic Bay. Hilarion died on September 2, 1983. On September 15, 1997, Feliciana, Hilarion’s surviving widow, requested that OPM adjust Hilarion’s annuity because it was below the guaranteed minimum annuity of $93.60 to which she clai med Hilarion was entitled. 1 In an initial decision issued on August 8, 2000, OPM denied Feliciana’s request because Hilarion had received “a recurring monthly benefit from another Federal or District of Columbia government source when he was eligible to apply for minimum annuity benefits,” and “[t]he amount of that benefit c[ould] not be verified . . . to determine whether it exceeded the amount permitted to qualify for the minimum Civil Servic e benefit.” Resp. App. at 9. Feliciana requested reconsideration of this decisi on on January 7, 2001, but OPM dismissed her request for failure to comply with the 30 day time limit for seeking reconsideration. Feliciana appealed to the Board, and in an init ial decision, the Administrative Judge (“AJ”) affirmed OPM’s reconsideration dec ision, concluding that her request for reconsideration was almost five months after the initial decision and rejecting her

1 Under Public Law No. 93-273, enacted April 26, 1974, “the monthly rate of annuity . . . shall not be less than the smalle st primary insurance amount, including any cost-of-living increase added to that amount, authorized to be paid from time to time under Title II of the Social Security Act.” This provision was repeal ed by Pub. L. No. 99- 251 § 305(a) (February 27, 1986). 2007-3110 2argument that OPM generally waived the 30 day time limit for residents of the Philippines. 2 Feliciana filed a petition for review befor e the full Board. In response to the Board’s request for evidence on the timeli ness of Feliciana’s OPM reconsideration request, OPM determined on October 10, 2002, that Hilarion was in fact entitled to the guaranteed minimum annuity rate and requested that the Board dismiss the petition for review as moot and refer the case to an OP M settlement attorney. In light of OPM’s decision to grant Hilarion the guaranteed mini mum annuity rate, Feliciana withdrew her petition for review to the full Board on January 16, 2003. The Board accordingly dismissed her petition for review and adopted the initial decision of the AJ as the Board’s final decision. On October 28, 2002, while the matter was pending before the Board, and after OPM agreed to pay Feliciana the guaranteed mini mum annuity retroactive to the date when Hilarion turned 62, Feliciana requested t hat OPM grant her husband an annuity payable earlier than the date of his 62 nd birthday. On August 16, 2004, OPM issued an initial decision rejecting her request, and Fe liciana timely sought reconsideration, claiming that Hilarion was entitled to an annuity immediately upon retirement. In its final decision, OPM ruled that t he doctrine of res judicata barred her request because she could have brought this claim as part of her request for the guaranteed minimum

2 Under 5 C.F.R. § 831.110, an individual can only appeal “final decision[s]” of OPM to the Board. 5 C. F.R. § 831.109(f)(1) defines OPM final decisions as decisions after reconsideration. Thus, Feliciana’s failu re to seek reconsideration within the 30 day time limit prevented her from raising the merits of her claim before the Board, and she was limited to challenging OPM’s decision t hat her request for reconsideration was untimely. 2007-3110 3annuity amount. Feliciana appealed to the Boar d, and the AJ ordered her to show cause as to why her appeal shoul d not be dismissed as barred by res judicata. On July 28, 2006, the AJ issued his in itial decision dismissing Feliciana’s appeal as barred by res judicata. The full Board denied Feliciana’ s petition for review on December 14, 2006, and the AJ’s initial decision becam e the final decision of the Board. Feliciana timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by la w, rule, or regulation; or unsupported by substantial evidence. 5 U.S. C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). Feliciana argues that the B oard erred in applying res judicata and instead should have decided her claim on the merits “because the issue had not been fully litigated.” Informal Br. of Petitioner at 2. Felici ana seems to confuse res judicata (claim preclusion) with collateral est oppel (issue preclusion). A prerequisite to the application of collateral estoppel is that the issue was actually litigated in the prior case. See Thomas v. Gen. Serv. Admin. , 794 F.2d 661, 664 (Fed. Cir. 1986). By contrast, “[u]nder res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry , 449 U.S. 90, 94 (1980) (em phasis added). Thus, application of res judicata

2007-3110 4only requires: (1) a final judgment on the merits ; (2) the same parties or their privies; and (3) an issue that could have been raised in the prior proceeding. There is no dispute that the parties involved in this appeal—Feliciana and OPM— are the same as were involved in the prio r action involving the guaranteed minimum annuity. Moreover, OPM issued a decision on the merits regarding Feliciana’s claim to the guaranteed minimum annuity, and the Board a ffirmed. Finally, there is no reason why Feliciana could not have raised her claim with OPM for an annuity payable immediately from the date of re tirement at the same time that she raised her claim to the guaranteed minimum annuity. Both claims re late to the same cause of action—the appropriate amount of Hilarion’s annuity—even though they are based on different legal theories. See Alyeska Pipeline Serv. Co. v. United States , 688 F.2d 765, 769 (Ct. Cl. 1982) (“[C]laim splitting cannot be justified on the ground that the two actions are based on different legal theories.”). Although Fe liciana belatedly raised the claim of an immediately payable annuity with OPM afte r it agreed to pay her the guaranteed minimum annuity, she failed to do so in t he original OPM proceedings. The Board therefore properly concluded that this claim was ba rred by res judicata. See Astoria Fed. Sav. & Loan Ass’n v. Solimino , 501 U.S. 104, 107 (1991) (“When an administrative agency is acting in a judicial capacity . . . the courts have not hesitated to apply res judicata to enforce repose.” (quoting United States v. Utah Constr. & Mining Co. , 384 U.S. 394, 422 (1966)) (emphasis in original)). No costs.

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