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 Merit Systems Protection 

Board (“Board”) that dismissed, upon the basis of res judicata, his request for review of 

5 C.F.R. § 831.201(a)(13), a regulation of the Office of Personnel Management 

 *

 Honorable Larry J. McKinney, Chief Judge 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 jurisdiction. 

DISCUSSION 

I. 

Pursuant to 5 U.S.C. § 1204(f)(1)(B), the Board is authorized to review OPM 

regulations. Mr. Siwa and others sought to avail themselves of this provision by filing a 

petition with the Board asking it to review 5 C.F.R. § 831.201(a)(13). Section 

831.201(a)(13) excludes from coverage under the Civil Service Retirement System 

employees “serving under nonpermanent appointments, designated as indefinite, made 

after January 23, 1955, the effective date of the repeal of Executive Order 10180. 

In its December 5 decision, the Board ruled that the requests for review of

section 831.201(a)(13) were barred by res judicata. The basis for the Board’s ruling

was that it previously had adjudicated appeals by Mr. Siwa and the other petitioners in 

which it sustained OPM’s denial of civil service retirement coverage pursuant to section 

831.201(a)(13). The Board explained that what was at issue in the previous appeals 

was whether OPM had properly excluded petitioners from 

civil service retirement coverage under 5 C.F.R. 

§ 831.201(a)(13). The Board, in denying the benefits, 

affirmed the validity of section 831.201(a)(13) as a 

reasonable interpretation of 5 U.S.C. § 8347(a) and the 

Federal Circuit affirmed the Board’s conclusion. 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 omitted). The Board added that Mr. Siwa and his fellow 

petitioners were not entitled “to return to the Board” and that their claims that section 

831.201(a)(13) was invalid—to the extent that they were different from claims raised in

2006-3174 2
the previous appeals—“could have been raised in the earlier proceedings.” Id. at 4. 

Accordingly, the Board denied Mr. Siwa’s request for review of the regulation. Mr. Siwa 

now appeals the Board’s decision. 

II. 

 In Delos Santos v. Office of Pers. Mgmt, 289 F.3d 1382 (Fed. Cir. 2002), we 

stated that “this court has jurisdiction to review the Board’s refusal to grant regulation 

review only if in doing so the Board considered the merits of the underlying 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 judicata. Thus, the Board did not 

consider “the merits of the underlying agency action.” See Clark v. Office of Pers. 

Mgmt., 95 F.3d 1139, 1141 (Fed. Cir. 1996) (holding that this court only has jurisdiction 

when the Board decided the challenge on the merits and giving the example of the 

Board refusing to review a claim when it would more properly be decided in an adverse 

individual personnel action). We see no distinction between a refusal to review a 

regulation because “the issue could be more appropriately determined in connection 

with review of an adverse individual personnel action” and a refusal to review a 

regulation because the Board determined that it had already decided the issue in an

adverse individual personnel action—indeed one involving the same individual. See id.

(“In stating that the decision whether to grant such review was in the Board’s ‘sole 

discretion,’ Congress provided that, 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 without authority to consider Mr. Siwa’s appeal 

2006-3174 3
of the Board’s December 5, 2005 decision. We therefore dismiss Mr. Siwa’s appeal for

lack of jurisdiction. 

2006-3174 4