OpenJurist

11 F3d 1069 Deleon v. Office of Personnel Management

11 F.3d 1069

Artemio M. DELEON, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 93-3373.

United States Court of Appeals, Federal Circuit.

Sept. 8, 1993.

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before LOURIE, Circuit Judge, BENNETT, Senior Circuit Judge, and RADER, Circuit Judge.

ON MOTION

ORDER

LOURIE, Circuit Judge.

1

The Office of Personnel Management moves for summary affirmance of the Merit Systems Protection Board's April 27, 1993 decision denying Artemio DeLeon's petition for enforcement. Deleon has not filed a response.

2

In November of 1990, OPM denied DeLeon's application for a deferred retirement annuity. DeLeon appealed to the Board. On March 21, 1991, an administrative judge (AJ) reversed and remanded. OPM petitioned the Board for review. On July 25, 1991, the Board reversed the AJ's decision sustaining OPM's decision denying DeLeon's application. DeLeon did not seek review of the Board's decision before this court.

3

Eighteen months later, DeLeon sought enforcement of the AJ's (reversed) decision with the AJ. On April 27, 1993, the AJ denied the enforcement petition determining that he lacked authority to order compliance with a decision that had been reversed or, if DeLeon was seeking to reopen or continue his case on the merits, that DeLeon was barred by res judicata.

4

DeLeon seeks review of the AJ's April 27, 1993 decision here. OPM moves for summary affirmance of the Board's April 27, 1993 decision.

5

Summary disposition is proper in those cases in which the position of one of the parties is clearly right so that there can be no substantial question as to the outcome of the case. Groendyke Transport Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.1969). In this case OPM's position is clearly right as to the outcome of the case. DeLeon clearly has no right to enforcement of a decision that has been reversed. Indeed, not only does the AJ's 1991 decision have no effect, but the opposite result, i.e., no entitlement to a deferred annuity, is the final adjudication on the merits of the claim. Further, DeLeon is barred by res judicata from seeking review of a matter that has already been adjudicated. Spears v. Merit System Protection Board, 766 F.2d 520, 535 (Fed.Cir.21985).

6

Accordingly,

IT IS ORDERED THAT:

7

OPM's motion for summary affirmance is granted.

FOR THE COURT