UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ISMAEL DELGADO,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-831M-15-0176-I-1

DATE: June 25, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ismael Delgado, Miami, Florida, pro se.

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 as barred by res judicata his appeal from an Office of Personnel 

Management (OPM) reconsideration decision finding that he owed an 

overpayment. Generally, we grant petitions such as this one only when: the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

However, we FORWARD the appellant’s request for review of his claims 

concerning OPM’s alleged nonpayment of annuity benefits from 2005 through 

present to the regional office for docketing as a new appeal. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant retired on November 9, 1987, and received a disability 

retirement annuity under the Civil Service Retirement System (CSRS). See Initial 

Appeal File (IAF), Tab 4 at 29. He received benefits until July 31, 2005, when 

OPM determined that he had been restored to earning capacity effective July 1, 

2001. Id. OPM informed the appellant that he had received an overpayment of 

$53,227.40 between his restoration to earning capacity in 2001 and the 

termination of his annuity payments in 2005, which OPM intended to collect. Id. 

at 29, 34-36. The appellant requested reconsideration and, in a February 23, 2006 

reconsideration decision, OPM affirmed its prior decision. Id. at 29-32. The 

appellant timely appealed to the Board, and the administrative judge affirmed the 

reconsideration decision in a June 27, 2006 initial decision. Id. at 20-25; see 
3

Delgado v. Office of Personnel Management, MSPB Docket No. AT-831M-06-

0457-I-1, Initial Decision (June 27, 2006). The appellant petitioned for review of 

the initial decision and, in an October 6, 2006 final order, the Board affirmed. 

Delgado v. Office of Personnel Management, MSPB Docket No. AT-831M-06-

0457-I-1, Final Order (Oct. 6, 2006). The appellant did not seek further review of 

the Board’s final decision. 

¶3 In a letter dated November 24, 2014, the appellant demanded that the

Department of the Treasury cease collection of the overpayment and send his case 

back to OPM because he had requested a Board hearing. 2

 See IAF, Tab 1 at 1. 

The appellant sent a copy of the letter to the Atlanta Regional Office, which 

docketed the letter as a new appeal. See IAF, Tabs 1-2. The administrative judge 

issued an acknowledgment order setting forth the law and burden of proof 

relevant to waiver or adjustment of the overpayment and a show cause order 

advising the appellant that his appeal may be barred by the doctrine of res 

judicata and ordering him to show good cause why the appeal should not be 

dismissed. IAF, Tab 2 at 2, 9-11, Tab 5. In response, the appellant challenged 

OPM’s calculation of his overpayment. See IAF, Tabs 6-7. The administrative 

judge found that the appellant’s claim was barred by the doctrine of res judicata 

and dismissed the appeal. IAF, Tab 8, Initial Decision (ID). The appellant has 

filed a petition for review of the initial decision, wherein he again challenges the 

merits of OPM’s overpayment determination but does not address res judicata. 

See Petition for Review (PFR) File, Tab 1. The agency has responded in 

opposition to the appellant’s petition for review. PFR File, Tab 4. 

¶4 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 

 2 We note that OPM submitted an August 26, 2014 letter from the appellant addressed 

to the Atlanta Regional Office, with copies to OPM, requesting a hearing and 

challenging the $53,277.40 overpayment determination and the nonpayment of annuity 

benefits from 2005 through present. See IAF, Tab 4 at 8-9. It is unclear, however, 

whether the appellant ever sent this letter to the regional office.
4

the same cause of action. Johnson v. Department of Veterans Affairs, 

121 M.S.P.R. 695, ¶ 9 (2014), aff’d, No. 14-9619, 2015 WL 2437090 (10th Cir. 

May 22, 2015). Thus, 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. Here, the 

administrative judge found that these elements were met because the Board’s 

October 6, 2006 final order involved the same parties and was, like the instant 

appeal, an appeal of OPM’s determinations that the appellant was restored to 

earning capacity and received an overpayment of $53,277.40. ID at 3. Thus, the 

administrative judge concluded that the present appeal was barred by the doctrine 

of res judicata. On review, the appellant has not challenged, and we discern no 

reason to disturb, the administrative judge’s finding that the appellant’s attempt 

to relitigate OPM’s determination that he was restored to earning capacity 

effective July 1, 2001, and that he received an overpayment of $53,277.40, is 

barred by res judicata. 

¶5 We note that the appellant’s pleadings below and on review also challenge

OPM’s nonpayment of his disability annuity benefits from 2005 through 2010 and

the nonpayment of his retirement annuity from 2010, when he states he reached 

age 60, through present. IAF, Tab 6 at 2; PFR File, Tab 1 at 3. These claims, 

however, were not addressed in the initial decision. See ID. In order to 

adjudicate these claims in the first instance, we forward the matter to the regional 

office to be docketed as a new appeal. 

ORDER

¶6 In light of the above, we DENY the appellant’s petition for review and 

AFFIRM the initial decision insofar as it found that the appellant’s challenge to 

the $53,277.40 overpayment determination is barred by res judicata. We 
5

FORWARD the appellant’s challenge of OPM’s nonpayment of annuity benefits 

from 2005 through present to the regional office to be docketed as a new appeal.

Upon docketing, the administrative judge shall give the appellant explicit notice 

of the law and his burden of proof to establish Board jurisdiction over an appeal 

of an OPM determination affecting his rights or interests under CSRS and permit 

him an opportunity to respond and submit evidence. See, e.g., Hasanadka v. 

Office of Personnel Management, 116 M.S.P.R. 636, ¶¶ 19, 21 (2011) (discussing 

how to establish Board jurisdiction over a retirement appeal). If there is a 

question of timeliness in relation to the appellant’s Board appeal, the

administrative judge should consider whether OPM’s receipt of the appellant’s 

August 26, 2014 Board appeal and request for a hearing constitutes a timely filing 

with the Board. See Patterson v. Office of Personnel Management, 51 M.S.P.R. 

408, 410-11 (1991) (stating that under certain circumstances, untimeliness may be 

excused where an appellant mistakenly filed his appeal with OPM). Lastly, the 

administrative judge shall afford the appellant an opportunity to show that his 

claim is not barred by res judicata or collateral estoppel.3

 See generally Peartree 

v. U.S. Postal Service, 66 M.S.P.R. 332, 336-37, 341 (1995) (discussing the two 

doctrines).

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

 3 We note that the appellant’s prior Board appeals seeking review of OPM 

determinations include MSPB Docket Nos. AT-831M-12-0416-I-1, AT-831M-11-0955-

I-1, AT-831M-08-0855-I-1, and AT-831M-06-0457-I-1.
6

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. 

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 your appeal to 

the 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