UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BANCIE BLACK,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0831-14-1113-I-1

DATE: August 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony J. Kaminski, Meghan A. Droste, Stephanie M. Herrera, Esquire, 

Silver Spring, Maryland, for the appellant.

Cynthia Reinhold, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed, on the basis of res judicata and/or collateral estoppel, his appeal of the 

final decision of the Office of Personnel Management (OPM) denying his 

application for a Civil Service Retirement System (CSRS) annuity. Generally, we 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

grant petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 This is the appellant’s second appeal regarding his eligibility for a CSRS 

annuity. In its second Opinion and Order on the appellant’s first appeal, 2 the 

Board set forth a detailed account of the appellant’s employment history, 

reviewed the pertinent statutes, and concluded that due to the October 9, 1979 

date of his initial appointment by the Panama Canal Commission, he was covered 

by the Social Security System of the Republic of Panama and excluded from 

coverage under the CSRS. Jadusingh v. Office of Personnel Management, 

91 M.S.P.R. 79, ¶¶ 10-17 (2002). In this appeal, the appellant alleged he is 

eligible for CSRS retirement coverage based on the court’s decision in Bell v. 

 2 In the first Opinion and Order on the appellant’s first appeal, the Board remanded the 

matter to OPM for it to consider his eligibility for a CSRS annuity. Jadusingh v. Office 

of Personnel Management, 89 M.S.P.R. 52, 61 (2001), vacated on req. for recons., 

91 M.S.P.R. 79 (2002). In this action, the appellant omitted the name Jadusingh from 

his appeal form, but provided a copy of an identification card which includes his full 

name including Jadusingh. Initial Appeal File (IAF), Tab 1 at 18; see IAF, Tab 12, 

Initial Decision at 2 n.1. The appellant does not dispute that he filed the cited, prior 

appeal. 
3

Office of Personnel Management, 169 F.3d 1383 (Fed. Cir. 1999). IAF, Tab 1 

at 5. 

¶3 Noting the Board’s final decision in the appellant’s prior appeal, the 

administrative judge gave the appellant proper notice of the elements and burdens

he must meet, and ordered him to show cause why his appeal should not be 

dismissed as barred by the doctrines of res judicata or collateral estoppel. IAF, 

Tab 6. In response, the appellant asserted that he had “new evidence showing his 

entitlement to CSRS benefits under a deferred annuity application” and argues 

that the Board improperly applied the Bell precedent in his prior appeal. IAF, 

Tab 10 at 4. He further argued that his appeal is not barred because he sought 

immediate retirement in the prior appeal and instead seeks a deferred retirement 

annuity in the instant appeal. Id. at 8. For that reason, in addition to his new 

evidence and his contrary interpretation of the precedent in Bell, the appellant 

contended that the issues in the prior appeal are not identical to those here and 

that this appeal should therefore not be dismissed. Id. at 9-12. The agency 

responded in opposition, asserting the appellant either did or could have 

submitted the argument and evidence at issue here in his prior appeal. IAF, 

Tab 11. 

¶4 Without holding a hearing, the administrative judge dismissed the appeal as 

barred by res judicata and collateral estoppel. IAF, Tab 12, Initial Decision (ID). 

The administrative judge found that regardless of the appellant’s characterization 

of his respective applications for retirement benefits, OPM had denied his

application for an annuity in both of his appeals based on the same term of 

service, 1978-1999, for the same reason, i.e., he had no creditable service under 

the CSRS. ID at 4-5. Because the Board had jurisdiction over that prior, final 

judgment on the merits, the administrative judge found the appeal barred by the 

doctrine of res judicata. ID at 5. The administrative judge further found that 

because the issues in the appellant’s prior appeal were identical, actually 
4

litigated, necessary to the resulting judgment, and he was fully represented 

therein, the appeal is also barred by the doctrine of collateral estoppel. ID at 5-6. 

¶5 In his timely-filed petition for review,

3 the appellant requests the Board to 

reopen his previous appeal based on the Board’s statements that retirement cases 

are substantively different than adverse action appeals and should generally be 

resolved on the merits. Petition for Review (PFR) File, Tab 6 at 17. The 

appellant also contends that he has diligently pursued this matter since 2002, 

seeking assistance from numerous and varied sources, and he asserts that 

reopening his prior appeal is required both to address the conflict with Bell, and 

to prevent manifest injustice. Id. at 18-24. The appellant argues that, contrary to 

the Board’s findings in his prior appeal, he was continuously employed by the 

Panama Canal Company and its successor the Panama Canal Commission during 

the pertinent time frame. Id. at 20. Specifically, he argues that he reported to 

work on September 30, and October 1, 1979, and that rather than allow him to 

work on those days, the agency retained him in a temporary leave status, did not 

terminate him as found in the prior appeal, and then forced him to work 

10 consecutive days upon his return to avoid the need for him to use leave on 

September 30, and October 1. Id. As to Bell, the appellant argues that the Board 

erred in finding that his employment by the Panama Canal Company prior to 

October 1, 1979, was insufficient to demonstrate that his initial appointment by 

the Panama Canal Commission also occurred before that date. Id. at 20-21. OPM 

responds in opposition to the appellant’s petition for review. PFR File, Tab 8. 

¶6 The doctrines of res judicata (claim preclusion) and collateral estoppel 

(issue preclusion) both concern the preclusive effects of a prior adjudication and 

are based on similar policy concerns—to “relieve parties of the cost and vexation 

of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent 

decisions, encourage reliance on adjudication.” Peartree v. U.S. Postal Service, 

 3 The appellant requested and received two extensions of time to file his petition for 

review. Petition for Review File, Tabs 1-4, 6. 
5

66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry, 449 U.S. 90, 94 

(1980)). Under the doctrine of res judicata, a valid, final judgment on the merits 

of an action bars a second action involving the same parties or their privies based 

on the same cause of action. Id. at 337. Res judicata precludes parties from 

relitigating issues that were, or could have been, raised in the prior action, and is 

applicable if: (1) the prior judgment was rendered by a forum with competent 

jurisdiction; (2) the prior judgment was a final judgment on the merits; and 

(3) the same cause of action and the same parties or their privies were involved in 

both cases. Id. Collateral estoppel, or issue preclusion, is appropriate when 

(1) an issue is identical to that involved in the prior action, (2) the issue was 

actually litigated in the prior action, (3) the determination on the issue in the prior 

action was necessary to the resulting judgment, and (4) the party precluded was 

fully represented in the prior action. E.g., Kroeger v. U.S. Postal Service, 

865 F.2d 235, 239 (Fed. Cir. 1988).

¶7 We agree with the administrative judge that the elements of both res 

judicata and collateral estoppel, as set forth above, are satisfied here. The 

ultimate issue of whether the appellant’s service was covered under the CSRS has 

been fully adjudicated and decided on the merits in a final Board decision; the 

issue was actually litigated by the parties in that prior action, it was necessary to 

the resulting judgment, and the appellant was fully represented in the proceeding. 

ID at 4-5; Jadusingh, 91 M.S.P.R. 79. Moreover, the appellant raised many of the 

same arguments he asserts here in his previous appeal, and to the extent he failed 

to do so, he could have raised those new arguments in that prior appeal, such that 

those arguments are now barred by res judicata. See, e.g., Peartree, 66 M.S.P.R.

at 337. 

¶8 As for the allegedly new evidence the appellant proffers on review, under 

5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first 

time with the petition for review absent a showing that it was unavailable before 

the record was closed despite the party’s due diligence. Additionally, the Board 
6

will not consider an argument raised for the first time in a petition for review 

absent a showing that it is based on new and material evidence not previously 

available despite the party’s due diligence. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). The appellant makes no such showing. 

Moreover, even if we were to consider the appellant’s arguments at this juncture, 

which he argues is appropriate in the context of a retirement appeal, PFR File, 

Tab 6 at 17, for the following reasons, those arguments do not establish that the 

administrative judge erred in dismissing the appeal, they do not provide sufficient 

reason to reopen the prior appeal, and ultimately, they do not show that he is 

eligible for a CSRS retirement annuity. 

¶9 The appellant essentially claims that his situation would be the same as that 

of the petitioners in Bell, but for an error which caused him to have a break in 

service between September 29, and October 9, 1979. PFR File, Tab 6 at 5-6. He 

explains that he was actually on leave during this time period such that the 

Panama Canal Company and its successor Panama Canal Commission maintained 

him on the rolls during the transfer in that status. Id. at 6. However, even if the 

appellant could establish these facts, such a claim of administrative error cannot 

serve as the basis for the payment of an annuity when, as is the case here, the 

appellant does not meet the statutory requirements for that benefit. See Killip v. 

Office of Personnel Management, 991 F.2d 1564, 1569 (Fed. Cir. 1993) (“Any 

and all authority pursuant to which an agency may act ultimately must be 

grounded in an express grant from Congress.”); see also Jadusingh, 91 M.S.P.R. 

79, ¶ 17 n.5 (citing Office of Personnel Management v. Richmond, 496 U.S. 414

(1990) (the payment of money from the Treasury must be authorized by a 

statute)). 

¶10 Moreover, without revisiting the Board’s analysis of the statutory 

provisions, we observe that under the language of the treaty which effected the 

transfer of the Panama Canal to the Panama Canal Commission, as it is cited by 

our reviewing court in Bell, persons who were employed prior to the transfer, and
7

who were covered under CSRS, “shall continue to be covered by that system” 

until the end of their employment with the Commission. Bell, 169 F.3d at 1386. 

The appellant proffered no evidence that would indicate that he was ever covered 

by the CSRS. In fact, the Standard Form 50 Notification of Personnel Action 

which the appellant submitted with his appeal below does not indicate that he was 

covered by CSRS but instead indicates in block 31 that he was covered by the 

Panama Social Security system. See IAF, Tab 1 at 17. Nor does the appellant 

assert that he was once covered by CSRS such that he meets the cited description. 

Because the record does not reflect that the appellant ever worked in a position 

covered by the CSRS, we find that the administrative judge properly found that 

OPM correctly determined that he does not qualify for a retirement annuity. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 
8

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board