NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

2006-3174
ALIPIO M. SIWA, Petitioner,

v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________ DECIDED: November 9, 2006

__________________________ Before SCHALL and GAJARSA, Circuit Judges , and MCKINNEY, Chief Judge

. *
PER CURIAM. DECISION Alipio M. Siwa petitions for review of the decision of the Meri t Systems Protection Board (“Board”) that dismi ssed, upon the basis of res judicata, his request for review of 5 C.F.R. § 831.201(a)(13), a regulation of the Offi ce of Personnel Management

* Honorable Larry J. McKinney, Chief J udge of the United States District Court for the Southern District of Indiana, sitting by designation.(“OPM”). Siwa v. Office of Pers. Mgmt. , No. CB1205050024-U-1 (M.S.P.B. Dec. 5, 2005). We dismiss for lack of ju risdiction. DISCUSSI ON
I. Pursuant to 5 U.S.C. § 1204(f)(1)(B), the Board is authorized to review OPM regulations . Mr. Siwa and other s sought to avail themselves of this provision by filing a petition wit h the Board asking it to revi ew 5 C.F.R. § 831. 20 1(a)(13). Section 831.201(a)(13) excludes from coverage under the Civil Se rvice Retirement System employees “serving under nonperm anent appointments, designated as indefinite, made after January 23, 1955, the effecti v e date of the repeal of Executive Order 10180. In its Dec e mber 5 decision, the Board ruled that the request s for revie w of section 831.201(a)(13) were barred by res judicata . The bas is for the Board’s ruling was that it previously had adj udicated appeals by Mr. Siwa and the other petitioners in which it sustained OPM’s denial of civil serv ice retirement coverage pursuant to section 831.201(a)(13). The Board expl ained that what was at iss ue in the previous appeals was whether OPM had properly excluded petitioners from civil service retirement cove rage under 5 C.F.R. § 831.201(a)(13). The Board, in denying the benefits, affirmed the validity of se ction 831.201(a)(13) as a reasonable interpretation of 5 U.S.C. § 8347(a) and the Federal Circuit affirmed t he Board’s conc lusion. See e.g. , Estabillo v. Office of Personnel Management , MSPB Docket No. SB-0831-94-0220-I-1 (Mar. 7, 1994), aff’ d , 62 F.3d 1432 (Fed. Cir. 1995) (Table) . . . . Siwa , slip op. at 3 (footnote om itted). The Board added that Mr. Siwa and his fe llow petitioners were not entitled “to return to th e Board” and that their claims that section 831.201(a)(13) was invalid—to the ex tent that they were different from claims raised i n

2006-3174 2the previous appeals

— “could have been ra ised in the earlier proceedings.” Id. at 4. Accordingly, the Board denied Mr. Siwa’s reques t for review of the r egulation. Mr. Siwa now appeals the Board’s decision.
II.
In Delos Santos v. Office of Pers. Mgmt , 289 F.3d 1382 (Fe d . Cir. 2002), we stated that “this court has jurisdiction to re view the Board’s refusa l to grant regulation review only if in doing so the Board considered the merits of the underly ing agency action.” Id. at 1385. As just seen, in this case , the Board refused to grant regulation review on the ground that review was barred by res ju dicata . Thus, the Board did not consider “the merits of t he underlying agency action.” See Clark v. Offic e of Pers. Mgmt. , 95 F.3d 1139, 1141 (Fed. Cir. 1996) (holding that this court only has jurisdiction when the Board decided the c hallenge on the merits and gi ving the example of the Board refusing to review a claim when it wo uld more properly be decided in an adverse indiv i dual personnel action). We see no dist inction between a refusal to review a regulation because “the issue c ould be m o re appropriately determined in connection with review of an adverse individual per sonnel action” and a refusal to review a regulation because the Board determined that it had already decided the issue in an adverse individual personnel act i on—indeed one involving the s a me indiv i dual. See id. (“In stating that the decision whether to grant such re view was in the Board’s ‘sole discretion,’ Congress provided th at, if the Board decided not to grant review, that would be the end of the matter, and that Board decision would not be subject to further review by this court.”). That means that we are wit hout author ity to consider Mr. Siwa’s ap pea l

2006-3174 3of the Boar d’s December 5, 2005 decis ion. We therefore dismiss Mr. Siwa’s appeal for lack of jurisdiction.

2006-3174 4