Manuel V. Custodio v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MANUEL V. CUSTODIO,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-1023
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-15-0018-I-1.
______________________
Decided: April 11, 2016
______________________
MANUEL V. CUSTODIO, Olongapo City, Zambles, Phil-
ippines, pro se.
ALISON V ICKS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, R OBERT E. K IRSCHMAN, J R., CLAUDIA BURKE.
______________________
Before WALLACH , MAYER, and T ARANTO, Circuit Judges.

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CUSTODIO v. OPM 2
P ER CURIAM .
Manuel Custodio sought to redeposit funds that he
previously withdrew from a civil service retirement ac-
count when he left government service in 1979. The Merit
Systems Protection Board affirmed the denial of Cus-
todio’s application, concluding that his request is barred
by res judicata because of an earlier Board adjudication of
his earlier request to redeposit funds to establish eligibil-
ity for a retirement annuity. We affirm.
BACKGROUND
Mr. Custodio worked as a janitor for the Department
of the Navy from 1974 to 1979, and when he left his job in
1979, he requested and received a refund of the retire-
ment contributions that had been deducted from his pay
during his time in the civil service. Many years later, in
2007, Mr. Custodio applied for certain retirement benefits
under the Civil Service Retirement System, but the Office
of Personnel Management (OPM) denied his application.
When he appealed to the Merit Systems Protection Board,
an administrative judge found that Mr. Custodio was
claiming entitlement to both a retirement annuity and a
disability annuity and had requested an opportunity to
make a redeposit, but the judge concluded that (a) Mr.
Custodio’s disability-benefits claim was untimely and (b)
he was not legally entitled (while no longer employed by
the federal government) to make a redeposit or to obtain a
retirement annuity. See J.A. 3–4, 10. Mr. Custodio did
not seek further review of the retirement-annuity ruling,
and when he appealed the untimeliness ruling regarding
disability benefits, the Board and this court rejected his
challenge. See Custodio v. Office of Pers. Mgmt., 468 F.
App’x 950, 952 (Fed. Cir. 2011); J.A. 4 n.5.
In 2014, Mr. Custodio again asked OPM to let him
make a redeposit of the 1979-withdrawn retirement funds
to establish eligibility for a retirement annuity. OPM
denied the request, explaining that, while no longer

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CUSTODIO v. OPM 3
employed by the federal government, he could not make
the desired redeposit. See J.A. 2 & n.2, 12. When he
appealed to the Board, the administrative judge (the same
one as in 2010) rejected Mr. Custodio’s claim as barred by
res judicata because of the adjudication of the earlier
claim. J.A. 10. The full Board agreed, because the earlier
adjudication involved his claim for an annuity based on
an asserted right to redeposit previously withdrawn
funds. J.A. 4–6. The Board also rejected Mr. Custodio’s
argument that the government should be equitably es-
topped from denying his application, concluding that he
had “presented no evidence or argument establishing
affirmative misconduct on the part of government officials
or that he reasonably relied, to his detriment, on misrep-
resentation or misconduct of government officials.” J.A. 3
n.3.
Mr. Custodio appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm a decision of the Board unless we find
that decision 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). We conclude
that Mr. Custodio has identified no error permitting us to
disturb the Board’s decision.
Mr. Custodio contends that res judicata should not
bar his current claim because his request to redeposit
funds is now made to secure a deferred annuity whereas
his earlier redeposit request was made to secure an
immediate annuity. The Board rejected the distinction.
We see no error in that conclusion.
As relevant here, the Board has adopted res judicata
standards applicable to its earlier adjudications that are

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CUSTODIO v. OPM 4
similar to judicially articulated standards applicable to
earlier court judgments. “Res judicata precludes parties
from relitigating issues that were, or could have been,
raised in the prior action, and is applicable if: (1) the prior
judgment was rendered by a forum with competent juris-
diction; (2) the prior judgment was a final judgment on
the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases.” J.A.
4 (citing Encarnado v. Office of Pers. Mgmt., 116 M.S.P.R.
301, 306 (2011)); see Cunningham v. United States, 748
F.3d 1172, 1179 (Fed. Cir. 2014).
Here, the earlier adjudication was a final judgment by
a forum with jurisdiction in a dispute between the same
parties; indeed, the administrative judge’s rulings on
redeposit and retirement annuities became final when
Mr. Custodio did not seek review of those rulings by the
Board or in this court. See J.A. 4; 5 C.F.R. § 1201.113(a).
Moreover, the Board could properly determine that the
present matter and the 2010 matter involve the same
“cause of action” under the familiar test asking if they
involve “the same set of transactional facts,” “ de-
fined . . . in terms of a core of operative facts, the same
operative facts, or the same nucleus of operative facts,
and based on the same, or nearly the same, factual allega-
tions.” Encarnado, 116 M.S.P.R. at 306 (citing Jet Inc. v.
Sewage Aeration Sys., 223 F.3d 1360, 1363 (Fed. Cir.
2000) (internal quotations omitted)). The 2010 matter
involved the same employment, fund withdrawal, and
current non-federal-employee status as does this matter.
And even as to the legal issue, Mr. Custodio has not
pointed to any way in which the asserted legal right to
redeposit funds to secure a Civil Service Retirement
System retirement annuity depends on whether the
annuity sought is immediate or deferred. Mr. Custodio
also has not identified any impediment to his having
requested a deferred annuity in 2010. The Board thus
concluded that “the causes of action are the same” and

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CUSTODIO v. OPM 5
“even if [Mr. Custodio] in the present case had not previ-
ously raised his right to make a redeposit in order to
receive a deferred annuity, he could have done so in the
earlier proceedings.” J.A. 5. For those reasons, the Board
could properly find res judicata to bar Mr. Custodio’s new
effort to seek what, at a minimum, he could have sought
in the earlier redeposit/annuity matter.
Mr. Custodio also challenges the Board’s rejection of
his argument that equitable estoppel prevents the gov-
ernment from opposing his application. But equitable
estoppel may not bar the government from applying its
governing statutory and regulatory standards unless, at a
minimum, there is proof of misrepresentation or other
misconduct and reasonable reliance on such misconduct to
his detriment. See J.A. 3 n.3; Zacharin v. United States,
213 F.3d 1366, 1371 (Fed. Cir. 2000). Here, the Board
concluded, Mr. Custodio had simply not identified evi-
dence to meet those requirements. J.A. 3 n.3. Mr. Cus-
todio has not shown error in that conclusion, merely
referring to the alleged failure of the government to
provide him with adequate information when he retired—
which is not enough.
Mr. Custodio requests that this court appoint pro bo-
no counsel to represent him. We conclude that appoint-
ment of counsel would not aid in this appeal. We
therefore deny his request.
CONCLUSION
For the foregoing reasons, the decision of the Merit
Systems Protection Board is affirmed.
AFFIRMED

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