Paje v. Office of Personnel Management

81 F. App'x 326

Opinion

ORDER

CLEVENGER, Circuit Judge.

We consider whether the Merit Systems Protection Board’s decision should be summarily affirmed.

Paterno A. Paje filed an appeal with the Board claiming that the Office of Personnel Management (OPM) violated the Whistleblower Protection Act (WPA) by retaliating against him for making protected disclosures concerning Paje’s claim to a retirement annuity. The Administrative Judge (AJ) determined that under Francisco v. Office of Personnel Management, 295 F.3d 1310 (Fed.Cir.2002), Paje had not demonstrated that he had made a protected disclosure and dismissed Paje’s appeal.

Footnotes

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* The AJ noted that in earlier litigation related to benefits under the Civil Service Retirement System, the Board and this court affirmed OPM’s denial of Paje’s application for annuity benefits. The AJ further noted that Paje had been a “party to three regulation review proceedings all of which ended with the case either being denied or dismissed, and a prior appeal under the Whistleblower Protection Act which was dismissed for lack of jurisdiction.” Finally, the AJ determined that the doctrine of res judicata bars relitigation of issues decided in earlier cases.

Summary disposition “is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). The Board correctly concluded that Paje did not make a protected disclosure. See Francisco, 295 F.3d at 1314. Because we agree with the Board that Paje did not make a disclosure of the type protected by the WPA and that res judicata is applicable, summary disposition is appropriate.

Accordingly,

IT IS ORDERED THAT:

The Board’s decision is summarily affirmed.

The AJ noted that Paje’s case was “remarkably similar” to Francisco. We note that Paje was represented before the Board by the same representative, Rizalino S. Cayle, who represented the petitioner in Francisco.