NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MANUEL V. CUSTODIO,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2016-1023

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0831-15-0018-I-1.

______________________ 

Decided: April 11, 2016

______________________ 

 MANUEL V. CUSTODIO, Olongapo City, Zambles, Philippines, pro se.

ALISON VICKS, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C.

MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE. 

______________________ 

Before WALLACH, MAYER, and TARANTO, Circuit Judges.
2 CUSTODIO v. OPM

PER CURIAM.

Manuel Custodio sought to redeposit funds that he 

previously withdrew from a civil service retirement account when he left government service in 1979. The Merit 

Systems Protection Board affirmed the denial of Custodio’s application, concluding that his request is barred 

by res judicata because of an earlier Board adjudication of 

his earlier request to redeposit funds to establish eligibility for a retirement annuity. We affirm.

BACKGROUND

Mr. Custodio worked as a janitor for the Department 

of the Navy from 1974 to 1979, and when he left his job in 

1979, he requested and received a refund of the retirement contributions that had been deducted from his pay 

during his time in the civil service. Many years later, in 

2007, Mr. Custodio applied for certain retirement benefits 

under the Civil Service Retirement System, but the Office 

of Personnel Management (OPM) denied his application. 

When he appealed to the Merit Systems Protection Board, 

an administrative judge found that Mr. Custodio was 

claiming entitlement to both a retirement annuity and a 

disability annuity and had requested an opportunity to 

make a redeposit, but the judge concluded that (a) Mr. 

Custodio’s disability-benefits claim was untimely and (b) 

he was not legally entitled (while no longer employed by 

the federal government) to make a redeposit or to obtain a 

retirement annuity. See J.A. 3–4, 10. Mr. Custodio did 

not seek further review of the retirement-annuity ruling, 

and when he appealed the untimeliness ruling regarding

disability benefits, the Board and this court rejected his 

challenge. See Custodio v. Office of Pers. Mgmt., 468 F. 

App’x 950, 952 (Fed. Cir. 2011); J.A. 4 n.5.

In 2014, Mr. Custodio again asked OPM to let him 

make a redeposit of the 1979-withdrawn retirement funds 

to establish eligibility for a retirement annuity. OPM 

denied the request, explaining that, while no longer 
CUSTODIO v. OPM 3

employed by the federal government, he could not make 

the desired redeposit. See J.A. 2 & n.2, 12. When he 

appealed to the Board, the administrative judge (the same 

one as in 2010) rejected Mr. Custodio’s claim as barred by 

res judicata because of the adjudication of the earlier 

claim. J.A. 10. The full Board agreed, because the earlier 

adjudication involved his claim for an annuity based on 

an asserted right to redeposit previously withdrawn 

funds. J.A. 4–6. The Board also rejected Mr. Custodio’s

argument that the government should be equitably estopped from denying his application, concluding that he 

had “presented no evidence or argument establishing 

affirmative misconduct on the part of government officials 

or that he reasonably relied, to his detriment, on misrepresentation or misconduct of government officials.” J.A. 3 

n.3.

Mr. Custodio appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm a decision of the Board unless we find 

that decision to be “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c). We conclude 

that Mr. Custodio has identified no error permitting us to 

disturb the Board’s decision.

Mr. Custodio contends that res judicata should not 

bar his current claim because his request to redeposit 

funds is now made to secure a deferred annuity whereas 

his earlier redeposit request was made to secure an

immediate annuity. The Board rejected the distinction. 

We see no error in that conclusion.

As relevant here, the Board has adopted res judicata 

standards applicable to its earlier adjudications that are 
4 CUSTODIO v. OPM

similar to judicially articulated standards applicable to 

earlier court judgments. “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.” J.A. 

4 (citing Encarnado v. Office of Pers. Mgmt., 116 M.S.P.R.

301, 306 (2011)); see Cunningham v. United States, 748 

F.3d 1172, 1179 (Fed. Cir. 2014).

Here, the earlier adjudication was a final judgment by 

a forum with jurisdiction in a dispute between the same 

parties; indeed, the administrative judge’s rulings on 

redeposit and retirement annuities became final when 

Mr. Custodio did not seek review of those rulings by the 

Board or in this court. See J.A. 4; 5 C.F.R. § 1201.113(a). 

Moreover, the Board could properly determine that the 

present matter and the 2010 matter involve the same 

“cause of action” under the familiar test asking if they 

involve “the same set of transactional facts,” “ defined . . . in terms of a core of operative facts, the same 

operative facts, or the same nucleus of operative facts, 

and based on the same, or nearly the same, factual allegations.” Encarnado, 116 M.S.P.R. at 306 (citing Jet Inc. v. 

Sewage Aeration Sys., 223 F.3d 1360, 1363 (Fed. Cir.

2000) (internal quotations omitted)). The 2010 matter

involved the same employment, fund withdrawal, and 

current non-federal-employee status as does this matter. 

And even as to the legal issue, Mr. Custodio has not 

pointed to any way in which the asserted legal right to 

redeposit funds to secure a Civil Service Retirement 

System retirement annuity depends on whether the 

annuity sought is immediate or deferred. Mr. Custodio 

also has not identified any impediment to his having 

requested a deferred annuity in 2010. The Board thus 

concluded that “the causes of action are the same” and 
CUSTODIO v. OPM 5

“even if [Mr. Custodio] in the present case had not previously raised his right to make a redeposit in order to 

receive a deferred annuity, he could have done so in the 

earlier proceedings.” J.A. 5. For those reasons, the Board 

could properly find res judicata to bar Mr. Custodio’s new 

effort to seek what, at a minimum, he could have sought 

in the earlier redeposit/annuity matter.

Mr. Custodio also challenges the Board’s rejection of 

his argument that equitable estoppel prevents the government from opposing his application. But equitable 

estoppel may not bar the government from applying its 

governing statutory and regulatory standards unless, at a 

minimum, there is proof of misrepresentation or other 

misconduct and reasonable reliance on such misconduct to 

his detriment. See J.A. 3 n.3; Zacharin v. United States,

213 F.3d 1366, 1371 (Fed. Cir. 2000). Here, the Board 

concluded, Mr. Custodio had simply not identified evidence to meet those requirements. J.A. 3 n.3. Mr. Custodio has not shown error in that conclusion, merely 

referring to the alleged failure of the government to

provide him with adequate information when he retired—

which is not enough. 

Mr. Custodio requests that this court appoint pro bono counsel to represent him. We conclude that appointment of counsel would not aid in this appeal. We 

therefore deny his request. 

CONCLUSION

For the foregoing reasons, the decision of the Merit 

Systems Protection Board is affirmed.

AFFIRMED