Alferos v. Office of Personnel Management
Alferos v. Office of Personnel Management
Opinion of the Court
Ireneo G. Alferos et al.
A board decision must be affirmed unless it is found to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994). Jurisdiction and res judicata are questions of law, which we review de novo. See Yates v. M.S.P.B., 145 F.3d 1480,1483 (Fed.Cir. 1998).
In section 122(a), the Whistleblower Protection Act grants federal employees, former employees, and applicants for employment individual rights of action to seek corrective action by the board if the requirements of section 2302(b)(8) are met. 5 U.S.C. § 1221(a) (1994). Section 2302(b)(8) stipulates that a protected disclosure, for which a retaliatory personnel action was taken, must have been made by an “employee or applicant for employment.” Id. § 2302(b)(8). Protected disclosures must be based upon, inter alia, a reasonable belief of “a violation of any law, rule, or regulation.” Id. § 2302(b)(8)(A)(i).
The retired employees argue that they fall within the covered class of “employee[s] or applicants] for employment” under section 2302(b)(8) even though their
The plain language of section 1221(a) clearly includes “former employee[s]” as among those who can invoke the Whistle-blower Protection Act, whereas section 2302(b)(8), referenced in section 1221(a), specifically lists only “employee[s] or applicant[s] for employment” as protected. Legislative history demonstrates that the purpose of the Whistleblower Protection Act is to encourage whistleblowing by federal employees and to protect their careers from reprisals when they make protected disclosures. Disclosures made after retirement are not within this ambit. See, e.g., S.Rep. No. 95-969, at 8, 18, 21-22 (1978); reprinted in U.S.S.C.A.N. 2730, 2740, 2743-44; S.Rep. No. 100-413, at 5 (1988).
Because the retired employees may not invoke individual rights of action under the Whistleblower Protection Act, we need not decide whether their allegation, that 2 C.F.R. § 831.201(a)(13) violated Executive Order 9154 and the Civil Service Reform Act of 1978, is a protected disclosure under section 2302(b)(8)(A). Nor do we need to address whether denial of their requests to reopen their claims constitutes retaliatory action under section 2302(b).
The doctrine of res judicata bars reopening a final judgment on the merits in which the same issue was raised or could have been raised. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). All of the retired employees have had the opportunity to litigate fully both OPM’s interpretation of section 831.201(a)(13) and the denial of benefits before the board. Moreover, we affirmed all of their benefit appeals
. The Merit Systems Protection Board issued a single decision consolidating the eleven individual right of action appeals. Petitioners submitted virtually identical informal briefs, thus we address their collective arguments.
. Alferos v. Office of Personnel Management, 60 F.3d 841 (Fed.Cir. 1995) (Table); Coronel v. Office of Personnel Management, 62 F.3d 1432 (Fed.Cir. 1995) (Table); Daguinotnot v. Office of Personnel Management, 62 F.3d 1431 (Fed. Cir. 1995) (Table); Danao v. Office of Personnel Management, 64 F.3d 672 (1995) (Table); De Jesus v. Office of Personnel Management, 62 F.3d 1431 (Fed.Cir. 1995) (Table); Dela Cruz v. Office of Personnel Management, 60 F.3d 841 (Fed.Cir. 1995) (Table); Falciso v. Office of Personnel Management, 106 F.3d 422 (Fed.Cir. 1996) (Table); Hilario S. David v. Office of Personnel Management, 60 F.3d 842 (Fed. Cir. 1995) (Table) (Navarro); Mauricio v. Office of Personnel Management, 60 F.3d 841 (Fed.Cir. 1995) (Table); Paje v. Office of Personnel Management, 64 F.3d 674 (Fed.Cir. 1995) (Table); Quiba v. Office of Personnel Management, 62 F.3d 1433 (Fed.Cir. 1995) (Table).
Reference
- Full Case Name
- Irenio G. ALFEROS, Antonio P. Navarro, Paterno A. Paje, Jose F. Falciso, Manuel M. Coronel, Gonzalo R. Danao, Sr., Natalio M. Dela Cruz, Moises R. Quiba, Gaudencio Daguinotnot, Ernesto L. Mauricio, and Wilfredo A. De Jesus v. OFFICE OF PERSONNEL MANAGEMENT
- Cited By
- 2 cases
- Status
- Published