Note: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3325

MARIANO A. ARENAL, Petitioner,

v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Mariano A. Arenal , of Tanza, Cavite, Philippines, pro se. Michael N. O’Connell , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Departm ent of Justice, of Washingt on, DC, for respondent. With him on the brief were Jeanne E. Davidson , Director, and Donald E. Kinner , Assistant Director. Of counsel on the brief was Paul St. Hillaire , Office of the General Counsel, Office of Personnel Management, of Washington, DC. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3325

MARIANO A. ARENAL, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Petition for review of the Merit Syst ems Protection Board in SF0831070016-I-1.

____________________________ DECIDED: February 8, 2008

____________________________ Before LOURIE, GAJARSA, and DYK, Circuit Judges

. PER CURIAM DECISION Mariano A. Arenal appeals from the final dec ision of the Merit Systems Protection Board (“the Board”) affirming the Office of Personnel Management’s (“OPM”) decision dismissing his appeal for benefit s under the Civil Service Retirement Act (“CSRA”). Arenal v. Office of Pers. Mgmt. , SF-0831-16-0315-I-1 (M.S.P. B. July 17, 2007) (“ Final Decision ”). Because Arenal fails to identify any basis for reversal, we affirm

. BACKGROUNDArenal was employed as a laborer for t he Department of the Navy at the Cavite Navy Yard in the Philippines from October 20, 1941 to December 8, 1945, and as a carpenter for the Public Works Department from May 29, 1946 to July 11, 1946. In addition, Arenal was employed as a rigger for Philippine Consolidated Shipyards from June 11, 1947 to June 17, 1948. In the 1980s, Arenal submitted an application to OPM for retirement benefits under the CSRA. He received an unfavorable decision and appealed to the Board. The Board determined that Arenal’s servic e as a laborer and carpenter qualified as creditable service under the CSRA, but hi s employment as a rigger did not. The Board concluded that Arenal failed to establish that he was entitled to an annuity under the CSRA because he failed to meet the five-year requirement of creditable service under 5 U. S.C. §§ 8331(1) and 2105(a). We affirmed the Board’s decision in Arenal v. Office of Personnel Management , 925 F.2d 1479 (1991) (“ Arenal ”). Arenal continued to contact OPM, inquiring about his entitlement to benefits. On April 19, 2001, OPM informed Arenal that “(1) it previously issued a reconsideration decision that addressed the information and r equest for CSRS benefits claimed by the appellant; (2) the Board and Feder al Circuit previously issued decisions covering this information and request for CSRS benefits; and (3) OPM ‘can no longer respond or reply to your correspondence[.]’” Arenal v. Office of Pers. Mgmt. , SF-0831-16-0315-I-1 at 2 (M.S.P.B. Jan. 26, 2007) (“ Initial Decision ”). On October 3, 2006, Arenal appealed to the Board. The Board ordered Arenal to show cause why his appeal should not be dismissed on grounds of res judicata in li ght of this court’s earlier decision in Arenal

. The government moved to dismiss the appeal and Arenal responded. On January 26,

2007-3325 -2-2007, the Administrative Judge (“AJ”) granted the government’s motion. In doing so, the AJ noted that the par ties did not dispute “that (1) the Board had jurisdiction to decide the prior appeal; (2) the judgment in the prior appeal was issued on the merits and became final; and (3) the same parties are involved in the prior appeal and the instant appeal and the same cause of action, the appe llant’s entitlement to CSRS annuity benefits, is at issue.” Initial Decision at 3. Thus, the AJ st ated that the issue on appeal was whether Arenal raised matters “that were or could have been raised in the prior action.” Id. The AJ addressed an affidavit of Gaudencio A. Alarca (“the Alarca affidavit”), which Arenal submitted and described as new and material evidence. The AJ concluded that the Alarca affidavit failed to es tablish that Arenal’s service after July 11, 1946 was creditable service. The AJ further concluded that Arenal did not explain why the affidavit could not have been raised in t he prior appeal, nor explai n why the affidavit was unavailable prior to the issuance of t he earlier decision, which was rendered “more than 40 years after the appellant r endered the service in question.” Id. at 5. Thus, the AJ concluded that Arenal failed to show that the matters he raised in the instant appeal “could not have been raised in the prior action, ” and dismissed the appeal as barred by res judicata. Id. Arenal filed a petition for review by t he full Board, which it denied on July 17, 2007. The Board held that Arenal’s claim was barred by res judicata and declined to reopen the previous appeal. The Board addre ssed Arenal’s assertion that his first creditable service term actually began on Febr uary 11, 1941, rather than October 20, 1941, as previously found by the Board. The Board noted that Arenal submitted

2007-3325 -3-evidence that would support that assertion, but the “additional mont hs of service would not provide the appellant with t he full 5 years of CSRS cred itable service required by 5 U.S.C. § 8333(a).” Final Decision at 2-3. The Board conc luded that there was no new evidence that was previously unavailable and that the AJ did not make any error in law that would affect the outcome of the case. Accordingly, the Board denied the petition for review. Arenal timely appealed to this court. On December 28, 2007, Arenal filed an informal motion to supplement the record, wh ich we granted on Janu ary 14, 2008. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The scope of our review in an appeal from a decision of the Boar d is limited. We must affirm the Board’s decision unless it wa s “(1) arbitrary, capricious, an abuse of discretion, or otherwis e 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) (2000); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). On appeal, Arenal argues that the Board erred by failing to reopen the earlier appeal. He asserts that the Boar d failed to consider his service as a rigger in the U.S. Army Forces Western Pacific, which purpor tedly took place bet ween July 18, 1946 to June 10, 1947, prior to his employment at Ph ilippine Consolidated Shipyards. He relies on the Alarca affidavit and ot her documents, including servic e records of Alarca, as proof of his employment in t he U.S. Army. He contends that his service in the U.S. Army was not included in his original applic ation for retirement benefits “due to absence

2007-3325 -4-of supporting documents.” Pet. Supp. Br. ¶ 2. According to Arenal, that additional period of service, if deemed cr editable service, would allow him to meet the five-year requirement under the CSRS. In addition, Arenal argues that the Board erred in applying res judicata. In response, the government argues that the Board properly declined to reopen the previous appeal based on its finding that Arenal failed to provide proof of creditable service after July 11, 1946 and t hat that finding is supported by substantial evidence. The government further argues that the Board correctly c oncluded that Arenal’s appeal was barred under the doctrine of res judicata. We agree with the government. With respec t to Arenal’s first argument, as we stated in our earlier Arenal decision: To be entitled to an annuity under the CSRA, Mr. Arenal must have completed five years of creditabl e service. 5 U.S.C. § 8333(a); Sabado v. Office of Pers. Mgmt. , 905 F.2d 387, 388 (Fed. Cir . 1990). A federal employee must be appointed in the civil service by a qualified official. 5 U.S.C. § 2105(a). Ther e must be a significant degree of formality surrounding the appointment. Horner v. Acosta , 803 F.2d 687, 692-93 (Fed. Cir. 1986). An official appoi ntment form or other documentary evidence is generally required to prove such appointment. Id. ; Goutos v. United States , 552 F.2d 922, 924 (Ct. Cl. 1976) . The burden of proving his appointment is on the petitioner. See Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140-41 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987). Arenal , 925 F.2d 1479. Here, the newly submitted material is devoid of any evidence of an official appointment form or other document ary evidence sufficient to establish that Arenal was appointed in the civ il service by a qualified official. Moreover, the Board found that the Alarca “affidavit does not clai m, nor is it apparent[,] that the appellant’s employment after July 11, 1946 was covered or creditable service under the CSRA.” Initial Decision at 4. While the Alarca affidav it and service records provide some

2007-3325 -5-2007-3325 -6- support that Arenal was employed as a rigger, they fail to establish that that service qualifies as creditable servic e under the CSRA. Moreover, Arenal failed to show why these materials were not submitted in t he earlier case. We thus conclude that substantial evidence supports the Board’s det ermination not to reopen its decision that Arenal did not have creditable service after July 11, 1946. With regard to Arenal’s second argumen t, a petitioner may be barred by res judicata “if (1) the prior decision was render ed by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties or their pr ivies were involved in both cases.” Carson v. Dep’t of Energy , 398 F.3d 1369, 1375 (Fed. Cir. 2005). As discussed above, the Board found that all three criteria were satisfied and Arenal does not dispute those findings. To the extent Arenal asserts t hat the doctrine of res judicata was misapplied in light of the additional documents submi tted in the instant appeal, viz. , the Alarca affidavit and service records, the Board held that Arenal failed to demonstrate t hat those documents could not have been presented in the prior action, particularly in light of the fact that the events described in those docum ents occurred more than forty years prior to our earlier Arenal decision. Initial Decision at 5-6. We find the Boar d’s conclusion to be supported by substantial evidence and not contrary to la w. Accordingly, because Arenal fails to identify any reversible error, we affirm

. COSTS No costs.