Document #: 122335 v 1 

UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

100 M.S.P.R. 442 

JOHN A. MERZWEILER, 

Appellant, 

v. 

OFFICE OF PERSONNEL 

MANAGEMENT, 

Agency. 

DOCKET NUMBER 

SF-1221-04-0707-W-1 

DATE: November 2, 2005 

John A. Merzweiler, Huntington Beach, California, pro se. 

Patrick Jennings, Washington, D.C., for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER 

¶1 The appellant petitions for review of the November 22, 2004 initial decision 

dismissing his appeal as barred by res judicata. For the reasons discussed below, 

we find that the petition does not meet the criteria for review set forth at 5 C.F.R. 

§ 1201.115, and we therefore DENY it. We REOPEN this case on our own 

motion under 5 C.F.R. § 1201.118, however, VACATE the initial decision, and 

DISMISS the appeal for lack of Board jurisdiction. 
2

BACKGROUND 

¶2 The Postal Service removed the appellant from his position as a Custodial 

Laborer for mental inability to meet the requirements of his position, and the 

appellant appealed his removal to the Board. Merzweiler v. U.S. Postal Service, 

69 M.S.P.R. 274, aff’d, 98 F.3d 1359 (Fed. Cir. 1996) (Table). The record of that 

appeal shows that the Postal Service “removed [the appellant] for this reason so 

as to attempt to secure him a disability retirement, and that its application to the 

Office of Personnel Management (OPM) on his behalf was successful.” Id. at 

276. After the annuity was approved, the Postal Service cancelled the removal 

and the administrative judge (AJ) dismissed the appellant’s appeal of the removal 

action. Id. The appellant petitioned the Federal Circuit for review, the Board 

requested and was granted a remand, and shortly thereafter “OPM cancelled the 

disability annuity it had awarded the appellant, solely because the [Postal 

Service] had cancelled the removal.”1

 Id. at 276-77. “The [Postal Service] then 

‘reactivated’ the removal action, as of its original effective date,” and the Board 

affirmed the removal. Id. After the Postal Service “reactivated” the appellant’s 

removal, OPM reinstated his disability retirement annuity. Initial Appeal File 

(IAF), Tab 4. 

¶3 In the prior appeal, the Board found no merit to the appellant’s argument 

“that because the agency cancelled the removal, and OPM cancelled the 

retirement and stated that the agency ‘should restore him to [its] rolls’ he is 

entitled to retroactive reinstatement to his former job.” Merzweiler, 69 M.S.P.R. 

at 277. This action is an attempt to argue the same theory under the rubric of an 

individual right of action (IRA) appeal, by contesting the Office of Special 

Counsel’s (OSC) decision that it is without jurisdiction to pursue the appellant’s 

 

1

 Cancellation of the appellant’s removal eliminated one of the prerequisites for an 

agency-filed disability retirement application, namely that “the agency has issued a 

decision to remove the employee.” 5 C.F.R. § 844.202(a)(1). 
3

complaint which alleged that OPM violated merit system principles by failing to 

ensure his reinstatement following the Postal Service’s rescission of his removal. 

IAF, Tab 1 at 8; see 39 U.S.C. § 410 (with certain limited exceptions, the 

provisions of Title 5, United States Code, do not apply to the Postal Service). 

¶4 The AJ issued an acknowledgment order which noted the appellant’s 

jurisdictional burden with respect to an IRA cause of action, IAF, Tab 2 at 2, but 

the appellant replied that “[w]histleblowing is not an issue here,” IAF, Tab 3. 

Rather than attempting to establish IRA jurisdiction over his appeal, the appellant 

continued to argue that OSC and the Board were failing to enforce merit system 

principles by allowing the Postal Service to cancel his removal without 

reinstating him and by condoning OPM’s refusal to order his reinstatement. Id. 

OPM responded that the appeal should be dismissed on the basis of res judicata. 

IAF, Tab 4 at 1. 

¶5 Noting that the Board had no jurisdiction to entertain the appellant’s 

apparent complaint against OSC, the AJ issued a show cause order stating that 

unless the appellant made a nonfrivolous allegation of Board jurisdiction, his 

appeal would be dismissed. IAF, Tab 5. The appellant responded that his 

complaint was against OPM for refusing to enforce its instruction to the agency 

to reinstate the appellant following OPM’s denial of the disability retirement 

application filed by the Postal Service, and argued that Chapter 12 of Title 5, 

United States Code, provides Board jurisdiction over OPM. IAF, Tab 6. 

¶6 The AJ found that because “the appellant has previously appealed and 

received decisions on the precise issue he is attempting to reappeal here[,]” the 

appellant is barred by res judicata from challenging the same personnel action 

under a different theory. IAF, Tab 7, ID at 2-3. In a timely petition for review 

(PFR), the appellant continues to argue that OPM violated merit system principles 

when it failed to enforce its instruction to the agency to reinstate the appellant. 

Petition for Review File (PFRF), Tab 1. OPM filed a timely response arguing the 

appellant’s PFR does not meet the review criteria. PFRF, Tab 4. 
4

ANALYSIS 

¶7 The doctrines of res judicata and collateral estoppel are bases to dismiss an 

appeal over which the Board has jurisdiction. Mycka v. Office of Personnel 

Management, 56 M.S.P.R. 675, 679 (1993). However, when jurisdiction is 

lacking, with limited exceptions not applicable here, these doctrines are not an 

appropriate basis for the dismissal of an appeal. See, e.g., Noble v. U.S. Postal 

Service, 93 M.S.P.R. 693, ¶ 11 (2003) (“Collateral estoppel may be grounds for 

dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a 

prior decision is afforded collateral estoppel effect and the appellant provides no 

other valid basis of Board jurisdiction.”). 

¶8 In this appeal, the appellant is essentially asking the Board to order 

corrective action with respect to an alleged prohibited personnel practice, namely, 

OPM’s alleged failure to enforce merit system principles by refusing to ensure his 

reinstatement after the U.S. Postal Service rescinded his removal.2

 IAF, Tab 1. 

Because “the Board has jurisdiction to entertain such allegations only in the 

context of a ‘corrective action proceeding’ brought by the Special Counsel” 

pursuant to 5 U.S.C. § 1214, the Board lacks jurisdiction to consider the 

appellant’s claims in this appeal. Perez v. Army and Air Force Exchange Service, 

680 F.2d 779, 787-88 (D.C. Cir. 1982); Wren v. Department of the Army, 2 

M.S.P.R. 1, 2 (1980) (5 U.S.C. § 2302(b) is not an independent source of Board 

jurisdiction), aff'd, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Accordingly, while 

the AJ may have improperly relied on the doctrine of res judicata as the grounds 

to dismiss this appeal, we dismiss the appellant’s appeal on jurisdictional 

grounds. 

 

2

 The appellant is apparently claiming that OPM’s failure to ensure his reinstatement 

violates the merit system principles enumerated in 5 U.S.C. § 2301 and thereby 

constitutes a personnel action prohibited by 5 U.S.C. § 2302(b)(12) (it is a prohibited 

personnel practice “to take or fail to take any other personnel action if the taking of or 

failure to take such action violates any law, rule, or regulation implementing, or 

directly concerning, the merit systems principles in section 2301 of this title”). 
5

ORDER 

¶9 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING 

YOUR FURTHER REVIEW RIGHTS 

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. 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 your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, http://fedcir.gov/contents.html. 
6

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. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board